The purpose of this chapter is to regulate wireless communications facilities consistent with the intent of the City of Orinda general plan as follows:

A.

Establish development standards to regulate the placement and design of wireless communications facilities in order to preserve the unique semi-rural character of the city;

B.

Utilize the best available technology to enable adequate coverage in a manner which will assure the health and safety of residents, protect the physical environment and minimize adverse visual impact;

C.

Establish development standards which are consistent with federal law related to the development of wireless communications facilities;

D.

Acknowledge the community benefits associated with the provision of wireless communications services within the city, particularly the provision of emergency services such as police and fire;

E.

Encourage stealth design of wireless communications facilities if located at visually prominent sites;

F.

Pursue additional public benefit by encouraging the leasing of publicly owned properties, where appropriate, for the development of wireless communications facilities;

G.

Encourage the location of wireless communication facilities in the downtown area and generally discourage the location of such facilities in residential districts and visually sensitive areas.

(Ord. 99-5 § 2 (Exh. A (part))

In this chapter, unless the context otherwise requires:

"Antenna" means a device used in communications which transmits or receives radio signals.

"Applicant" means owner(s) of property (and, where applicable, easements) upon which wireless communications facilities are to be located;

"Architecturally significant modification" means a structural addition to an existing structure, other than a wireless communications facility, that is visually obtrusive and is integrated into the architecture of the existing structure, including but not limited to, new or modified parapets, roof elements and signage.

"Co-location" means the location of two or more wireless communications facilities on a single support structure, or otherwise sharing a common location. Co-location shall also include the location of wireless communications facilities with other utility facilities and structures such as, but not limited to, water tanks, transmission towers and light standards.

"Cell site" means a parcel developed with wireless communications facilities. Other uses may or may not also be present on the site.

"Environmental preservation zone" means those areas shown on the North Orinda specific plan map designated as "environmental preservation," adopted November 21, 1978, and as may be subsequently amended, on file in the city offices.

"Equipment enclosure" means a cabinet or other structure used to house equipment associated with a wireless communications facility.

"Facade-mounted antenna" means an antenna that is directly attached or affixed to any facade of a building or other structure.

"Ground-mounted antenna" means an antenna with its support structure placed directly in the ground, the total height of which does not exceed eighteen (18) feet from finished grade including the height of the antenna and any above grade support structure.

"Monopole" means a single freestanding pole, post or similar structure over eighteen (18) feet in height from finished grade used to support equipment associated with a wireless communications facility.

"Related equipment" means all equipment ancillary to the transmission and reception of voice and data via radio frequencies. Such equipment may include, but is not limited to, cable, conduit and connectors.

"Revocation" means the termination of any city granted zoning administrator permit, wireless communications facility permit or development plan permit pursuant to the procedures established for land use permits in Chapter 17.31 of the Orinda Municipal Code (or pursuant to these sections as amended from time to time).

"Ridgeline area" means those areas shown on the United States Geological Survey 7.5 minute map labeled "Orinda Ridgeline Map," dated July 23, 1985, and as may be subsequently amended, on file in the city offices.

"Roof-mounted antenna" means an antenna directly attached or affixed to the roof of an existing structure.

"Roofline" means the exterior roof to which a roof-mounted facility is affixed.

"Scenic corridor routes" means those areas designated as scenic corridors in the Orinda general plan: Moraga Way from its intersection with Camino Pablo south to the city limits; Camino Pablo from its intersection with Santa Maria Way north to the city limits; and Highway 24, designated as a California Scenic Highway within the city limits.

"Service provider" means any authorized provider of wireless communications services.

"Stealth facility" means any wireless communications facility which is designed to blend into the surrounding environments by means of screening, concealment or camouflage. The antenna and supporting antenna equipment are either not readily visible beyond the property on which it is located, or, if visible, appears to be part of the existing landscape or built environment rather than appear to be a wireless communications facility

"Telecommunication tower" means a freestanding tower (other than a monopole) that is over eighteen (18) feet in height from finished grade and is designed to support antennas. A lattice tower is an example of a telecommunications tower.

"Trail corridors" means existing and proposed trail corridors as identified in Figure 3 of the Orinda general plan.

"View corridors" means those areas identified in the City of Orinda's view preservation ordinance, which include: Mt. Diablo; prominent features of the East Bay Hills, such as Round Top, Huckleberry Preserve and Tilden Park; Briones Reservoir; and Briones Agricultural Preserve.

"Visually sensitive areas" means environmental preservation zones, ridgeline areas, scenic corridor routes, trail corridors and view corridors.

"Wireless communications facility" means facilities that transmit and/or receive electromagnetic signals for the following technologies: cellular technology, personal communications services (PCS), enhanced specialized mobile radio services and paging systems. It includes antennas and all other types of equipment used in the transmission or receipt of such signals; structures designed or placed specifically to support this equipment; associated equipment cabinets and/or buildings; and all other accessory development. It does not include radio towers, television towers and specialized public safety networks.

"Wireless communications facilities master plan" and "master plan" mean the five-year plan, required with the submission of an application for a wireless communications facility, that is described in detail in Section 17.34.10 of this chapter.

(Ord. 99-5 § 2 (Exh. A (part))

Subject to the requirements of this chapter, a wireless communications facility may be allowed in commercial districts, on publicly-owned or utility-owned property, and on property used for utility facilities and structures. A wireless communications facility shall not be located in a residential district or in a visually sensitive area unless it is determined by the city that there is no other alternative location for the carrier to provide adequate coverage. In order to encourage the location of wireless communications facilities in specified locations where visual and other land use impacts are minimized, staff review under Section 17.34.6(A) is permitted. For all other sites, heightened scrutiny under Section 17.34.6(B) shall be required.

(Ord. 99-5 § 2 (Exh. A (part))

The following standards shall apply to a new wireless communications facility within the City of Orinda:

A.

A carrier shall not prohibit the use of a parcel by other carriers if that carrier is not the property owner.

B.

A wireless communications facility shall be visually unobtrusive and compatible with the surroundings. To make this determination, the Planning Commission or Zoning Administrator may require that evidence be presented concerning: (1) the minimum height and size necessary for the facility to perform its intended function; and (2) whether the facility is necessary for effective coverage.

C.

All ground-mounted wireless communications facilities shall be camouflaged by structures, topography and landscaping.

D.

Wireless communications facilities shall not violate the provisions of the tree management regulations in Chapter 17.21.

E.

All roof-mounted wireless communications equipment antennas, poles and equipment enclosures shall be located in the least visible location.

F.

Coaxial cables, conduit lines and other electrical boxes for ground-mounted antennas shall be placed underground or within the approved structures. Coaxial cables and conduit lines for roof and facade-mounted antennas shall be placed or camouflaged to minimize their visual impact.

G.

A wireless communications facility shall comply with all applicable Federal Communications Commission's standards for radio frequency radiation emission and shall not adversely affect the public health, safety or welfare.

H.

Monopoles and telecommunications towers are prohibited unless the decisionmaker determines that no reasonable alternative is available to the carrier to provide personal wireless services.

I.

Stealth antenna design shall be encouraged, including the incorporation of antennas within attics, steeples, existing towers, fence posts, chimneys, artificial rock structures, artificial trees, behind or below building parapets, or concealed within building additions that are compatible with the existing building or architecture.

J.

If the facility is proposed for a single-family residential zone or in a ridgeline area, a minimum three hundred (300) foot setback shall be provided between a wireless communications facility (except for the associated PG&E meter) and the nearest residential structure on an adjacent parcel, unless the facility is incorporated within or attached in a stealth manner to the main structure on the parcel or is attached to a public utility structure in a visually unobtrusive manner.

K.

If located in a ridgeline or environmental preservation overlay zone, the wireless communications facility complies with Chapter 17.5.

L.

No wireless communications facility may exceed the maximum height permitted for the main structure in any zone, except that roof-mounted and facade-mounted facilities in nonresidential zones or on public, semi-public or nonprofit buildings may project up to fifteen (15) feet above the roofline of the existing structure regardless of total height. Wireless communications facilities attached to a public utility structure may not exceed the existing height of the public utility structure regardless of total height.

(Ord. 99-5 § 2 (Exh. A (part))

In determining whether to grant or deny approval for a wireless communications facility, the Planning Commission or Zoning Administrator may attach such conditions as are necessary to ensure visual and land use compatibility with the surroundings, to protect existing vegetation and to minimize the proliferation of such facilities, including but not limited to:

A.

The wireless communications facility shall have a nonreflective finish and be painted to be compatible with surrounding architecture and landscaping to minimize visual impacts;

B.

If not screened from view, equipment enclosures shall be compatible with the design scale, materials, colors and landscaping of other existing structures on the site;

C.

Stealth design of antennas shall be required as necessary to minimize visual impact;

D.

Additional landscaping or other screening shall be provided;

E.

Existing and proposed landscaping around the proposed facility, as identified in the project plans, shall be maintained in good condition (including installation of an irrigation system, if necessary) for as long as the facility is in place; landscaping on the applicant's site which helps to screen the wireless communications facility from off-site views, as identified on the project plans, shall not be removed, trimmed or altered in any way, unless such removal or trimming is deemed necessary by a certified arborist to protect the health of the landscaping; if removal or trimming is deemed necessary, additional landscaping may be required;

F.

Within one month after construction of the wireless communications facility, and on an annual basis thereafter, testing of total RF emissions shall be conducted to verify compliance with FCC regulations. Such testing shall be conducted during normal business hours on a nonholiday weekday with the wireless communications facility operating at maximum power and shall measure the total emissions from the subject cell site.

(Ord. 99-5 § 2 (Exh. A (part))

A wireless communications facility permit shall be obtained prior to installation of a wireless communications facility.

A.

Staff Review. Zoning Administrator approval shall be required for a wireless communications facility permit for any proposed facade-mounted, roof-mounted or ground-mounted facility in a commercial zoning district that would be in place on a temporary basis not to exceed six months, or for any proposed facade-mounted, roof-mounted or ground-mounted at one of the following encouraged locations (listed in the order of preference):

1.

Downtown public, nonprofit, semi-public and businesses (buildings or other structures), including downtown locations which are visible from general plan-designated scenic corridor areas; provided, that such facilities are not visually obtrusive;

2.

Public, nonprofit or semi-publicly-owned property, such as fire stations, churches and schools, where such a location will mitigate visual obtrusiveness and land use compatibility impacts;

3.

Co-location of wireless communications facilities on approved, encouraged sites only where such co-location reduces traffic, visual and other cell site impacts; and

4.

Co-location on existing public utility structures such as electrical transmission towers and water tanks in nonvisually sensitive areas.

B.

Planning Commission Review. Planning Commission approval shall be required for a wireless communications facility located at any of the following discouraged locations (listed in order of preference):

1.

Residentially-zoned parcels not otherwise covered in subsection A of this section;

2.

Co-location on existing public utility structures in visually sensitive areas; and

3.

On a new, stand-alone monopole in any area where the monopole is not incorporated into an existing comparable-sized structure in a stealth manner.

In addition, Planning Commission approval shall be required for any other wireless communications facility permit that does not meet the criteria of subsection A of this section.

C.

Appeal. A decision of the Zoning Administrator may be appealed to the Planning Commission. A decision of the Planning Commission may be appealed to the City Council.

D.

Review and Approval Matrix. The following matrix describes the required review and approval procedures outlined in subsections A and B of this section, as well as the restriction on monopoles and telecommunications towers specified in Section 17.34.4. ("ZA" stands for Zoning Administrator and "PC" stands for Planning Commission.)

Section 17.34.6 Matrix

(Ord. 99-5 § 2 Exh. A (part))

The Planning Commission and the Zoning Administrator shall make a determination on an application for a wireless communications facility permit at a noticed public hearing as provided in Chapter 17.42.

(Ord. 99-5 § 2 Exh. A (part))

A permit required under this chapter shall be valid for as long as the wireless communications facility remains in use and the facility is operated in compliance with the terms and conditions of the permit.

(Ord. 99-5 § 2 Exh. A (part))

A.

Review. Periodic review of wireless communications facilities shall be provided in the following manner for encouraged and discouraged sites:

1.

Encouraged Sites. For encouraged site specified under Section 7.34.6(A), five years after a wireless communications facility permit is issued under this chapter, at the time specified as a condition of approval, if less than five years, or at any other earlier time if good cause exists, the carrier shall submit a report demonstrating compliance with the terms and conditions of approval of the wireless communications facility permit, and the Planning Director shall certify whether the facility remains in compliance with the terms and conditions of approval and if the facility continues to be necessary to provide wireless communications services. Compliance shall also be certified every five years thereafter.

2.

Discouraged Sites. For discouraged sites specified under Section 7.34.6(B), or for any site not explicitly encouraged under Section 7.34.6(A), three years after a wireless communications facility permit is issued under this chapter, at the time specified as a condition of approval, if less than three years, or at any other earlier time if good cause exists, the carrier shall submit a report demonstrating compliance with the terms and conditions of approval of the wireless communications facility permit, and the Planning Director shall agendize the matter as a consent item for the Planning Commission and shall certify whether the facility remains in compliance with the terms and conditions of approval and if the facility continues to be necessary to provide wireless communications services. Compliance shall also be certified every three years thereafter.

B.

Revocation.

1.

Violation of Permit. If the terms and conditions of a permit for a wireless communications facility are violated, the permit may be revoked pursuant to the revocation procedures specified by Chapter 17.44 of this title.

2.

RF Emissions Violation. In the event that total RF emissions for a cell site exceed FCC standards, the applicant shall immediately cease operation of the wireless communications facility and permit revocation procedures shall be commenced.

C.

Termination. If the use of the permitted wireless communications facility is discontinued for any reason for a period of six months, the permit shall be void, and the use shall not be resumed.

D.

Removal. If a permit under this chapter is revoked or otherwise becomes void, the wireless communications facility shall be removed from the site, and the site shall be restored to its original, preconstruction condition. For facilities on public property, this removal requirement shall be included within the terms of the lease.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

In addition to general application submittal requirements, all applications for wireless communications facilities shall include the following:

A.

Five year wireless communications facilities master plan (or, if the carrier has previously submitted a full master plan, an updated master plan must be submitted). The master plan shall consist of the following components:

1.

A written description of the type of technology each company/carrier will provide to its customers over the next five years (cellular, PCS, ESMR, etc.);

2.

A description of the radio frequencies to be used for each technology;

3.

A description of the type of consumer services (voice, video, data transmissions) and consumer products (mobile phones, laptop PC's, modems) to be offered;

4.

A written list of all existing, existing to be upgraded or replaced, and proposed cell sites within the city for these services by the company making the application;

5.

A presentation-size map of the city which shows the five year plan cell sites, or if individual properties are not known, the geographic service areas of the cell sites; this map shall be provided in both hard copy, at a twenty-four (24) inch by thirty-six (36) inch or greater size, and in computer (3.5-inch) disk form in dxf format;

6.

The written list of cell sites shall include all anticipated cell sites over a five-year period, and shall be provided in both hard-copy and computer (3.5-inch) disk form formatted for Microsoft Word for Windows; the written list shall include the following information:

a.

List of the cell sites first by address then by Assessor's parcel number,

b.

List the zoning district in which the cell sites are to be located,

c.

List the other land use or uses on the site at which each facility would be located, and include a detailed description of the existing structure or structures on that site,

d.

List the carrier or carriers who would occupy the site,

e.

List the square footage or acreage of the site and describe the topography of the site,

f.

If the site is governed by certain easement restrictions, or other restrictions on location imposed by the property owner or easement-holder, describe those restrictions as they relate to the placement of wireless communications facilities on the site,

g.

List the number of antennae and base transceiver stations per site by carrier, and if there are other installations on a site, list the number by each carrier,

h.

Describe the location and type of antennae installation(s) (facade-mounted, roof-mounted, ground- mounted, freestanding monopole) and location of the base transceiver installation(s),

i

Describe any efforts to camouflage or otherwise "stealth" the proposed antennae installation(s), base transceiver station(s) or other proposed installation(s),

j.

List the properties and public rights-of-ways from which the proposed wireless communications facilities would be visible, and, to the extent feasible, provide photographs of these facilities from the relevant vantage points,

k.

List the height from grade to the top of the antennae installation(s) and the base transceiver installation(s),

l.

List the Radio Frequency range in Megahertz and list the wattage output of the equipment;

B.

Visual representations which accurately depict the appearance of the proposed facility within the context of the site proposed for development (i.e., photo-simulations);

C.

Mock-up structures and/or story poles which replicate the proposed wireless communications facility shall be provided in the field;

D.

Documentation demonstrating that use of the site will not result in levels of radio frequency (RF) emissions which will exceed Federal Communication Commission standards. This documentation shall be independently verified by a third party reviewer prior to issuance of a wireless communications facility permit;

E.

A description of any proposed noise-generating equipment, including the times and decibel levels of the noise which would be produced;

F.

Plans specifying any proposed access roads, parking areas and new utilities service connections that would be necessary to either construct or maintain the proposed wireless communications facility;

G.

Plans specifying the placement and design of any proposed equipment enclosure;

H.

A map with the site specific search ring indicating the geographic area in which the site must be located to meet coverage objectives;

I.

A map showing the area to be serviced by the site;

J.

A letter explaining the site selection process, including information about alternate sites and why they were not selected;

K.

A description of the type of facility that would be required to locate the facility at an alternate location, including height, antenna configuration and equipment location;

L.

Such other information as may be requested by the city a third party reviewer to make the determinations required by this chapter.

(Ord. 00-2 § 12; Ord. 99-5 § 2 (Exh. A (part))

A.

Technical Assistance. The Planning Commission or the Zoning Administrator may require technical evaluations and other technical assistance for the purpose of making any determination required by this chapter, including but not limited to confirming the electromagnetic frequency needs of the applicant and identifying alternative solutions and sites that better meet the criteria and legislative intent of this chapter. The cost of these technical services shall be borne by the applicant.

B.

Removal Bond. The application shall include a bond to cover any future wireless communication facility removal costs that may be incurred by the city if the wireless communications facility permit lapses due to nonuse or other noncompliance with the wireless communications facility permit granted for the facility.

C.

Fees. A fee in an amount equal to the fee for a land use permit application shall be charged for each application for a wireless communication facilities permit. The cost of the periodic review required by this chapter for projects located on encouraged sites shall be equivalent to one-half the cost of a wireless communications facility permit, and the cost of periodic review for projects located on discouraged sites shall be equivalent to three-quarters the cost of a wireless communications facility permit. In addition, a fee equivalent to thirty (30) percent of any technical assistance costs shall be charged by the city to cover the city's administrative costs.

(Ord. 99-5 § 2 (Exh. A (part))

The Zoning Administrator may find that certain types of wireless communications facilities and systems are exempt from the requirements of this chapter and do not require a wireless communications facility permit. Exempt facilities shall include private, noncommercial wireless communications systems or facilities which are contained entirely on-site for the purpose of serving the premises on the site and having no potential visual, noise, thermal or radio frequency interference on surrounding properties, or replacement of facilities or equipment of a minor nature which does not increase the number of antennas or significantly expand the size of the installation.

(Ord. 99-5 § 2 (Exh. A (part))

The remedies in this chapter are not exclusive. The city may rely on any remedy authorized by law.

(Ord. 99-5 § 2 (Exh. A (part))

A.

Applicability. Notwithstanding any provision in this chapter to the contrary, all requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station, whether located on private property or in the public rights-of-way, submitted pursuant to Section 6409 will be reviewed and approved, or denied without prejudice, in accordance with the standards and procedures in this section. However, the applicant may voluntarily elect to seek a wireless-communications facility permit as provided in this chapter.

B.

Special Definitions for Eligible Facilities Requests. The abbreviations, phrases, terms and words used in this section will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms or words in this section will have their ordinary meanings. If any definition assigned to any phrase, term or word in this section conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.

1.

"Approval authority" means the City official responsible for reviewing applications for section 6409 approvals and vested with the authority to approve, conditionally approve or deny such applications as provided in this section. The approval authority for a section 6409 approval in connection with private property shall be the Planning Director or his/her designee. The approval authority for a section 6409 approval in connection with the public rights-of-way shall be the Public Works Director or his/her designee.

2.

"Base station" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(1), as may be amended or superseded. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

3.

"Collocation" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(2), as may be amended or superseded. As an illustration and not a limitation, the FCC's definition effectively means "to add" and does not necessarily refer to more than one wireless facility installed at a single site.

4.

"Eligible facilities request" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(3), as may be amended or superseded.

5.

"Existing" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(4), as may be amended or superseded.

6.

"FCC" means the Federal Communications Commission or its duly appointed successor agency.

7.

"FCC Shot Clock" means the presumptively reasonable timeframe within which the City generally must act on a given wireless application, as defined by the FCC and as may be amended or superseded.

8.

"RF" means radio frequency or electromagnetic waves.

9.

"Section 6409" means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. § 1455(a), as may be amended or superseded.

10.

"Site" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(6), as may be amended or superseded.

11.

"Substantial change" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(7), as may be amended or superseded.

12.

"Tower" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(9), as may be amended or superseded. Examples include, but are not limited to, monopoles (i.e., a bare, unconcealed pole solely intended to support wireless transmission equipment), mono-trees and lattice towers.

13.

"Transmission equipment" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(8), as may be amended or superseded. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

C.

Required Approvals.

1.

Section 6409 Approval. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted with a written request for approval under Section 6409 shall require an approval in such form determined by the approval authority consistent with all valid and enforceable terms and conditions of the underlying permit or other prior regulatory authorization for the tower or base station (each amendment a "Section 6409 approval"). For any application for a Section 6409 approval properly denied, the applicant may submit the same or a substantially similar application for a discretionary permit under this chapter.

2.

Other Permits and Regulatory Approvals. No collocation or modification approved pursuant to this section may occur unless the applicant also obtains all other permits and regulatory approvals as may be required by any other federal, state or local government agencies, which includes without limitation other any permits and/or regulatory approvals issued by other departments or divisions within the City. Furthermore, any Section 6409 approval granted under this section shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or regulatory approvals.

D.

Applications.

1.

Application Content. All applications for a Section 6409 approval (as that term is defined in subsection (C)(1)) must include all the information and materials required by the approval authority for the application as stated either on the application itself or in some other publicly available document at the time an application is submitted. The City Council authorizes the approval authority to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the approval authority finds necessary, appropriate or useful for processing any application governed under this section. All applications shall, at a minimum, require the applicant to demonstrate that the proposed project will be in planned compliance with all applicable health and safety laws, regulations or other rules, which includes without limitation all building codes, electric codes and all FCC rules for human exposure to RF emissions.

2.

Applications Deemed Withdrawn. To promote efficient review and timely decisions, and to mitigate unreasonable delays or barriers to entry caused by chronically incomplete applications, any application governed under this section will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the approval authority within sixty (60) calendar days after the approval authority deems the application incomplete in a written notice to the applicant. As used in this subsection (2), a "substantive response" must include the materials identified as incomplete in the approval authority's notice.

3.

Additional Requirements and Regulations. The City Council further authorizes the approval authority to establish other reasonable rules and regulations for duly filed applications, which may include without limitation regular hours for submittal appointments with applicants, as the approval authority deems necessary or appropriate to organize, document and manage the application intake process. All such requirements, materials, rules and regulations must be in written form and publicly stated to provide all interested parties with prior notice.

E.

Decisions and Appeals.

1.

Administrative Review. The approval authority shall review a complete and duly filed application for a Section 6409 approval, and may act on such application without prior notice or a public hearing.

2.

Decision Notices. Within five (5) days after the approval authority acts on an application for a Section 6409 approval or before the FCC Shot Clock expires (whichever occurs first), the approval authority shall send a written notice to the applicant. In the event that the approval authority denies the application, the written notice to the applicant must contain:

a.

The reasons for the decision;

b.

A statement that denial will be without prejudice; and

c.

Instructions for how and when to file an appeal.

3.

Required Findings for Approval. The approval authority may approve or conditionally approve an application any application for a Section 6409 approval when the approval authority finds that the proposed project:

a.

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

b.

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

4.

Criteria for Denial without Prejudice. Notwithstanding any other provision in this section, and consistent with all applicable federal laws and regulations, the approval authority may deny without prejudice any application for a Section 6409 approval when the approval authority finds that the proposed project:

a.

Does not meet the findings required in subsection (E)(3);

b.

Involves the replacement of the entire support structure; or

c.

Violates any legally enforceable law, regulation, rule, standard or permit condition reasonably related to public health or safety.

5.

Conditional Approvals. Subject to any applicable limitations in federal or state law, nothing in subsection (E) is intended to limit the approval authority's authority to conditionally approve an application for a Section 6409 approval to protect and promote the public health and safety.

6.

Appeals. Any applicant may appeal the approval authority's written decision to deny without prejudice an application for Section 6409 approval. The written appeal together with any applicable appeal fee must be tendered to the City Clerk within ten (10) calendar days from the approval authority's written decision, and must state in plain terms the grounds for reversal and the facts that support those grounds. The City Manager or the City Manager's designee (either party, the "City Manager") shall be the appellate authority for all appeals from the approval authority's written decision to deny without prejudice an application for Section 6409 approval. The City Manager shall review the application de novo without notice or a public hearing; provided, however, that the City Manager's decision shall be limited to only whether the application should be approved or denied in accordance with the provisions in this section and any other applicable laws. The City Manager shall issue a written decision that contains the reasons for the decision, and such decision shall be final and not subject to any further administrative appeals.

F.

Standard Conditions of Approval. In addition to all other conditions adopted by the approval authority, all Section 6409 approvals, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this subsection (F). The approval authority (or the appellate authority) shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved facility consistent with the goals of this section.

1.

Permit Term. The City's grant or grant by operation of law of a Section 6409 approval constitutes a federally-mandated modification to the underlying permit or other prior regulatory authorization for the subject tower or base station, and will be regarded as a modification to the underlying approval for the subject tower or base station. The City's grant or grant by operation of law of this Section 6409 approval will not extend the permit term, if any, for any underlying permit or other underlying prior regulatory authorization. Accordingly, the term for this Section 6409 approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station, and any renewals thereof. This condition shall not be applied or interpreted in any way that would cause the term of the underlying permit for the modified facility to be less than ten (10) years in total length.

2.

Compliance Obligations Due to Invalidation. In the event that any court of competent jurisdiction invalidates all or any portion of Section 6409 or any FCC rule that interprets Section 6409 such that federal law would not mandate approval for any eligible facilities request(s), such approval(s) shall automatically expire one (1) year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved eligible facilities requests or the approval authority 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 approval authority may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated eligible facilities request when it has obtained the applicable permit(s) or submitted an application for such permit(s) before the one-year period ends.

3.

City's Standing Reserved. The City's grant or grant by operation of law of an Section 6409 approval does not waive, and shall not be construed to waive, any standing by the City to challenge Section 6409, any FCC rules that interpret Section 6409 or any eligible facilities request.

4.

Compliance with Approved Plans. Before the permittee submits any applications to the Building Department required to commence construction in connection with this Section 6409 approval, the permittee must incorporate this Section 6409 approval, all conditions associated with Section 6409 approval and any approved photo simulations into the project plans (the "Approved Plans"). The permittee must construct, install and operate the wireless facility in substantial compliance, as determined by the approval authority, with the Approved Plans. Any alterations, modifications or other changes to the Approved Plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, must be submitted in a written request subject to the approval authority's prior review and approval. The approval authority may refer the request to the approval authority who may revoke the Section 6409 approval if the approval authority finds that the requested alteration, modification or other change may cause a substantial change as that term is defined by the FCC in 47 C.F.R. § 1.6100(b)(7), as may be amended.

5.

Build-Out Period. This Section 6409 approval will automatically expire one (1) year from the approval or deemed-granted date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility, which includes without limitation any permits or approvals required by the any federal, state or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The approval authority may grant one (1) written extension to a date certain, but not to exceed one (1) additional year, when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least thirty (30) days prior to the automatic expiration date in this condition.

6.

Site Maintenance. 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 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 forty-eight (48) hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.

7.

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 approval, which includes without limitation any Laws applicable to human exposure to RF emissions. 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. In the event that the City fails to timely notice, prompt or enforce compliance with any applicable provision in the Orinda Municipal Code, any permit, any permit condition or any applicable law or regulation, the applicant or permittee will not be relieved from its obligation to comply in all respects with all applicable provisions in the Orinda Municipal Code, any permit, any permit condition or any applicable law or regulation.

8.

Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all unreasonable, undue or unnecessary adverse impacts on nearby properties that may arise from the permittee's or its authorized personnel's construction, installation, operation, modification, maintenance, repair, removal and/or other activities on or about 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 except during normal construction work hours authorized by the Orinda 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 or other state or federal government agency or official with authority to declare a state of emergency within the City. The approval authority or designee may issue a stop work order for any activities that violates this condition in whole or in part.

9.

Inspections; Emergencies. The permittee expressly acknowledges and agrees that the City's officers, officials, staff or other designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee, or at any time during an emergency. The City's officers, officials, staff or other designees 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, if present, may observe the City's officers, officials, staff or other designee while any such inspection or emergency access occurs.

10.

Permittee's Contact Information. The permittee shall furnish the approval authority 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 and immediately provide the approval authority with updated contact information in the event that either the responsible person or such person's contact information changes.

11.

Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed, shall defend, indemnify and hold harmless the City, City Council and City boards, commissions, agents, officers, officials, employees and volunteers from any and all:

a.

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 approval, and

b.

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 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 and/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 approval, and that such indemnification obligations will survive the expiration or revocation of this Section 6409 approval.

12.

Performance Bond. Before the Building Department issues any permits required to commence construction in connection with this Section 6409 approval, the permittee shall post a performance bond from a surety and in a form acceptable to the approval authority in an amount reasonably necessary to cover the cost to remove the improvements and restore all affected areas based on 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, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code § 65964(a), the approval authority shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility to a standard compliant with applicable laws. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.

13.

Permit Revocation. The approval authority may recall this Section 6409 approval for review at any time due to complaints about noncompliance with applicable laws or any approval conditions attached to this Section 6409 approval after notice and an opportunity to cure the violation is provided to the permittee. If the noncompliance continues after notice and reasonable opportunity to cure the noncompliance, the approval authority may revoke this Section 6409 approval or amend these conditions as the approval authority deems necessary or appropriate to correct any such noncompliance.

14.

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. The permittee may keep electronic records; provided, however, that hard copies or electronic records kept in the City's regular files will control over any conflicts between such City-controlled copies or records and the permittee's electronic copies, and complete originals will control over all other copies in any form.

15.

Abandoned Wireless Facilities. The wireless facility authorized under this Section 6409 approval shall be deemed abandoned if not operated for any continuous six-month period. Within ninety (90) days after a wireless facility is abandoned or deemed abandoned, the permittee and/or property owner shall completely remove the wireless facility and all related improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the Orinda Municipal Code. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within said ninety-day period, the City shall have the right (but not the obligation) to perform such removal and restoration with or without notice, and the permittee and property owner shall be jointly and severally liable for all costs and expenses incurred by the City in connection with such removal and/or restoration activities

16.

Landscaping. The permittee shall replace any landscape features damaged or displaced by the construction, installation, operation, maintenance or other work performed by the permittee or at the permittee's direction on or about the site. If any trees are damaged or displaced, the permittee shall hire and pay for a licensed arborist to select, plant and maintain replacement landscaping in an appropriate location for the species. Only International Society of Arboriculture certified workers under the supervision of a licensed arborist shall be used to install the replacement tree(s). Any replacement tree must be substantially the same size as the damaged tree. The permittee shall, at all times, be responsible to maintain any replacement landscape features.

(Ord. No. 19-05, § 3(Exh. A), 10-1-19)

Notwithstanding any other provision of this chapter, all "small-wireless facilities" as defined by the FCC in 47 C.F.R. § 1.6002(l), as may be amended or superseded, are exempt from this chapter and subject to Chapter 12.10.

(Ord. No. 19-05, § 3(Exh. A), 10-1-19)