The purpose and intent of the city council in enacting the provisions of this chapter are to:

A.

Promote and protect the health, safety, comfort, convenience and general welfare of the city's residents and businesses;

B.

Protect the benefits derived by the city, its residents and the general public from access to wireless services while minimizing, to the greatest extent feasible, the redundancy of wireless telecommunication facilities in the city;

C.

Establish standards, timelines, and criteria, in accordance with applicable state and federal regulations, including, without limitation, the Telecommunications Act of 1996, 42 USC Sections 151 et seq., for the orderly development and siting of wireless communication facilities in the city;

D.

Establish standards to regulate the placement and design of wireless communication facilities to preserve the visual and other characteristics of the city by reducing, to the greatest extent feasible, adverse aesthetic impacts on nearby properties and the community as a whole; to assure compatibility with properties adjacent to such facilities; and, to protect the general health, safety, welfare, and quality of life of the residents of the city;

E.

Provide incentives for the location of wireless communication facilities on properties owned or controlled by the city where feasible and desirable to encourage clustering of facilities and to prevent proliferation of facilities and the unnecessary adverse impacts of such proliferation;

F.

Provide for the location of wireless communication facilities according to demonstrated need; encourage the use of existing facilities, including co-location of facilities on a single mast or site; and encourage the use of facilities which are as small and unobtrusive as feasible in light of the functional needs of the operator;

G.

Encourage the location of wireless communication facilities within nonresidential zones;

H.

Require all wireless communication facilities to be consistent with all other applicable city rules and regulations, including, without limitation, plans, municipal code provisions, and other applicable government regulations and standards;

I.

This section shall be interpreted and applied so as to be consistent with the Telecommunications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, applicable state laws, and administrative and court decisions and determinations relating to same;

J.

This section is intended to regulate all uses of wireless communications in the city, including uses by public utilities, to the extent of the city's power to regulate the use of land under federal and state law, but not to exceed the scope of the city's authority.

(Ord. No. 1373U, 12-8-15)

In addition to the other definitions used in this title, the following words and phrases shall have the following meanings when used in this chapter unless the context clearly requires otherwise:

"Accessory equipment" means any equipment installed, mounted, operated or maintained in close proximity to a wireless telecommunication facility to provide power to the wireless telecommunication facility or to receive, transmit or store signals or information received by or sent from a wireless telecommunication facility.

"Antenna" means any system of poles, panels, rods, reflecting disks, wire or similar devices used for the transmission or reception of electromagnetic signals. "Antenna" does not include an antenna structure or any device that is not affixed to land or the exterior of a structure.

"Antenna structure" means any structure, including a pole, mast, or tower, whether freestanding or mounted on another building or structure that supports an antenna or an array of antennas. The height of an antenna structure is measured to the highest point of any antenna mounted upon it or to any higher point of the antenna structure.

"Base station" means a non-tower supporting structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower. Base station includes, without limitation:

A.

Equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

B.

Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems ("DAS") and small-cell networks).

C.

Any structure other than a tower that, at the time the relevant application is filed with the city under this section, supports or houses equipment described in paragraphs (A) and (B) that has been reviewed and approved under applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing that support.

The term "base station" does not include any structure that, at the time the relevant application is filed with the city under this section, does not support or house equipment described in [subsections] (A), (B) of this definition.

"Changes in height" should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act. Title 47, U.S.C., section 1455.

"Co-location" means a situation in which a single support structure or building supports more than one antenna, which antennas are owned or operated by more than one public or private entity and includes the mounting or installation of additional wireless transmission equipment at an existing wireless facility.

"Director" means the Sierra Madre Planning and Community Preservation Director or his or her designee.

"Equipment cabinet" means any transmission or other equipment other than an antenna housed within a protective case. An equipment cabinet may be indoors or outdoors, large or small, movable or immovable. Any equipment case with a heat sink or other cooling mechanism for the equipment inside qualifies as an equipment cabinet.

"Exempt facilities" means those wireless telecommunication facilities identified in Section 17.93.030 of this chapter.

"FCC" means the Federal Communications Commission or any successor to that agency.

"Height" means the distance from the existing grade at the base of an antenna structure or, in the case of a roof-mounted antenna, from the grade at the exterior base of the building, to the highest point, when fully extended, of any antenna mounted on that structure or of the antenna structure itself.

"Monopole" means a freestanding antenna structure, with a single continuous footing, designed to be self-supporting without the use of guywires.

"Non-tower supporting structure" means any structure, whether built for wireless communications purposes or not, that supports wireless transmission equipment under a valid permit at the time an applicant submits an application for a permit under this Code and which is not a wireless tower.

"Section 6409" means Title 47, U.S.C., section 1455.

"Site" for applications which the applicant contends are protected by Section 6409, Title 47, U.S.C. section 1455, means, the current boundaries of the leased or owned property surrounding the tower (other than towers in the public rights-of-way) and any access or utility easements currently related to the site, and, for other support structures, is further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.

"Small wireless facility" means:

1.

The facilities:

a.

Are mounted on structures fifty feet or less in height including their antennas; or

b.

Are mounted on structures no more than ten percent taller than other adjacent structures; or

c.

Do not extend existing structures on which they are located to a height of more than fifty feet or by more than ten percent, whichever is greater;

2.

Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume;

3.

All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment, is no more than twenty-eight cubic feet in volume;

4.

The facilities do not require antenna structure registration under 47 C.F.R. § 17.1 et seq.;

5.

The facilities are not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and

6.

The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified in Section 1.1307(b).

"Stealth facility" means a wireless communication facility designed to blend into the surrounding environment, to be minimally visible and to appear as a natural feature, such as a tree or rock or other natural or architectural feature, so that no portion of any equipment cabinet, transmission equipment, or any other apparatus associated with facility's function is visible from publicly accessible areas. A stealth facility may be incorporated into an architectural feature such as a steeple, parapet wall, light standard, equipment screen or landscaping.

"Transmission equipment" means equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. 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.

"Tower" or "wireless tower" means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for 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, and the associated site.

"Wireless" means any Federal Communications Commission licensed or authorized wireless telecommunications service.

"Wireless communication facility," "wireless facility," or "facility" means any device or system for transmitting and/or receiving electromagnetic signals, including, but not limited to, radio waves and microwaves for cellular technology, personal communication services, mobile services, paging systems and related technologies. Facilities include towers, utility poles, transmitters, microwave dishes, antennas and parabolic antennas, and all other types of equipment used in transmitting or receiving signals; antenna structures, associated buildings, base stations, emergency power systems or cabinets which house support equipment; and other accessory development.

(Ord. No. 1373U, 12-8-15; Ord. No. 1410-U, § 3, 3-26-19; Ord. No. 1411, § 2, 4-9-19)

This section applies to all proposed antennas and modifications and related wireless communication facilities, as follows:

A.

All applications for approval of the installation of new wireless communication facilities in the city.

B.

All facilities for which applications were received by the department but not approved prior to the effective date of the ordinance codifying this section, shall comply with the regulations and guidelines of this section.

C.

All facilities for which applications were approved by the city on or prior to the effective date of the ordinance codifying this section shall be exempt from this section, except for the requirements of Sections 17.93.070 and 17.93.080.

D.

All facilities for which applications have been previously approved, but are now or hereafter modified.

(Ord. No. 1373U, 12-8-15)

A.

Type of Review. Upon receipt of an application for a new or modified wireless facility or collocation pursuant to this chapter, the department of planning and community preservation shall review such application to determine whether the application is complete. In addition to a standard application form for a conditional use permit, all applications for the approval of conditional use permits for wireless telecommunication facilities shall include, but are not necessarily limited to, an application fee and the following information:

1.

Site plan, drawn to scale, indicating all existing and proposed features of the proposed site;

2.

A complete project description, including the following information regarding the proposed wireless communication facility:

a.

Number, size, and approximate orientation of antennas;

b.

Heights of proposed facilities;

c.

Equipment enclosure type and size;

d.

Construction timeframe for equipment enclosure;

e.

Materials and colors of antennas;

f.

Description of structures necessary to support the proposed antennas and to house ancillary equipment;

g.

Description of lighting;

h.

Description of identification and safety signage;

i.

Description of access to the facility;

j.

Description of utility line extensions needed to serve the facility; and

k.

Backup power sources, if proposed.

3.

Floor plans, elevations and cross sections of any proposed equipment shelter or other appurtenant structure at a scale no smaller than one-fourth inch equals one foot with clear indication of all exterior materials and colors. Paint and materials samples shall be provided;

4.

Landscape plans, including the name and size of all proposed plants, irrigation detail and a landscape maintenance plan;

5.

Details, including number, manufacturer, model and type, power output, frequency range, and dimensions of all proposed antennas, cabinets and related equipment;

6.

A colored map indicating the coverage area of the provider's existing facilities in the vicinity of the site, the proposed coverage area of the proposed facility, and any facilities in the city or in the vicinity of the proposed site that are, or will be upon construction of the proposed facility, obsolete and can be removed;

7.

Full-scale story poles or other visual depiction of the actual size of the proposed facility, including all antennas and equipment shelters, shall be erected on-site five days prior to the beginning of the public notice period. The applicant and/or property owner shall provide the city with a liability waiver indemnifying the city against any claims that may result from said story poles or other visual depiction. Mock-ups for proposed monopoles shall be coordinated with the director;

8.

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

9.

For new facilities, the plans shall include a scaled depiction of the maximum permitted increase as authorized by Section 6409(a) of the 2012 Middle Class Jobs and Tax Relief Act, Title 47, U.S.C., section 1455 using the proposed project as a baseline; and

10.

Technical justification for the proposal (for example, to fill a "dead zone" or to accommodate increased demand), why the subject site is considered necessary to accomplish the provider's objectives, and why the proposed site is the most appropriate location;

11.

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

12.

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

13.

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

14.

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

15.

An application for a wireless telecommunication facility in a public right-of-way for which the applicant claims entitlement under California Public Utilities Code Section 7901 shall be accompanied by evidence satisfactory to the director that the applicant is a telephone corporation or has written authorization to act as an agent for a telephone corporation. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN.

16.

Minor Modification Application Content. All applications for a wireless facility permit for a proposed minor modification to an existing wireless facility which the applicant contends is subject to Title 47, U.S.C., Section 1455 must include the following items:

a.

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

b.

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

c.

Site and Construction Plans. Complete and accurate plans for the facility as existing and as proposed with all height and width measurements explicitly stated, drawn to scale, signed, and sealed by a California-licensed engineer, land surveyor, and/or architect, which include the following items:

1.

A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plain view.

2.

For proposed collocations or modifications to wireless towers, the plans must include scaled plan views and all four elevations that depict the physical dimensions of the wireless tower as it existed on February 22, 2012, or as approved if constructed after February 22, 2012. For proposed collocations or modifications to base stations, the plans must include scaled plan views and all four elevations that depict the physical dimensions of the base station as it existed on February 22, 2012, or as approved if constructed after February 22, 2012.

d.

Statement Asserting that Section 6409 Applies. A written statement asserting that the proposed collocation or modification is an "eligible facilities request" and does not result in a substantial change in the physical dimensions of the facility's wireless tower or base station, as those terms are defined by Section 6409, Title 47, U.S.C., section 1455, and justifying that assertion.

e.

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

f.

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

B.

Timeframe for Review. Under federal and state law, the city must act on an application for a permit for a new wireless facility within one hundred fifty days, and must act on an application for a permit for substantial modifications to existing facilities which the applicant does not contend are protected by Title 47, U.S.C., section 1455, within ninety days, after the applicant submits the application for a wireless facility permit, unless tolled due to issuance of any notice of incomplete application or by mutual agreement between the city and the applicant. Under federal law, the city must approve or deny an application for minor modifications to existing facilities which the applicant contends are protected by Title 47, U.S.C., section 1455, together with any other city permits required for a proposed wireless facility minor modification, within sixty days after the applicant submits the application, unless tolled due to issuance of any notice of incomplete filing or by mutual agreement between the city and the applicant. Under federal and state law, failure to act on a wireless facility permit application within these timelines, excluding tolling periods, may result in the permit being deemed granted by operation of law. In that case, the applicant must still comply with the standard conditions of approval in this chapter applicable to that type of facility.

C.

Tolling of the Timeframe for Review. The review period begins to run when the application is first submitted and may be tolled only by mutual agreement by the city and the applicant, or due to issuance of any notice of incomplete application by the city. The city shall provide any first notice of an incomplete application within thirty days of receipt of the application.

(Ord. No. 1373U, 12-8-15)

Except as specifically noted, the following types of facilities are exempt from the permit requirements of this chapter:

A.

Exempt by State and/or Federal Regulations. A wireless communications facility shall be exempt from the provisions of this chapter if and only to the extent state or federal law preempts local regulation of the facility.

B.

Exempt Subject to Locational Requirements. The following types of wireless communications facilities are exempt from the provisions of this chapter if such facilities are entirely on-site and are not located within required front or side yard setback areas. Facilities may be located in any portion of a rear yard in which accessory buildings may be located.

1.

Radio or Television Antenna. A single ground- or building-mounted receive-only radio or television antenna for the sole use of owners or occupants of the parcel or common interest development on which such antenna is located. The maximum height of such antenna shall not exceed ten feet above the building height prescribed for the zone in which the antenna is located.

2.

Satellite Dish Antenna. A ground- or building-mounted receive-only radio or television satellite dish antenna not exceeding twenty-four inches in diameter for the sole use of owners or occupants of the parcel or common interest development on which the antenna is located, provided that the highest point of such dish does not exceed the height of the highest roof ridge or parapet line of the primary structure on the parcel.

3.

Citizen Band Antenna. A ground- or building-mounted citizens' band radio antenna not exceeding thirty-five feet above grade, including any mast.

4.

Amateur Radio Antenna. A ground- or tower-mounted antenna operated by a federally licensed amateur radio operator. Such antennas shall require building permit approval and the director may regulate the placement of the antenna as necessary to ensure safety.

C.

Government Antennas. Antennas owned and operated by the city.

(Ord. No. 1373U, 12-8-15)

In addition to all other requirements of this chapter, including, without limitation, the requirement to obtain a conditional use permit, the placement of a wireless communication facility in the city shall comply with the following standards:

A.

General Requirements.

1.

Where feasible and aesthetically desirable, wireless communication facilities shall be located on city-owned or controlled properties or rights-of-way, with the exception of rights-of-way within or abutting residential districts, schools and parks.

2.

Wireless communication facilities installed or modified after the effective date of the ordinance codified in this chapter shall be co-located with existing and planned wireless communication facilities whenever feasible and aesthetically desirable to minimize overall visual impacts. Wireless communication providers are encouraged to locate their facilities adjacent to or concealed by water tanks, light standards and other utility structures.

3.

New or modified wireless communication facilities shall be designed to be as visually unobtrusive as possible. If feasible, new facilities shall be designed to be stealth facilities. All new facilities and substantial changes to existing facilities shall include appropriate stealth and concealment techniques given the proposed location, design, visual environment, and nearby uses and structures.

B.

Restricted Locations. No wireless communication facility shall be permitted in any residential or open space zone unless the applicant proves each of the following:

1.

Prohibition of such location would prevent service to areas accessible by the public rights-of way;

2.

Infeasibility of locating the facility elsewhere;

3.

The facility is designed as a stealth facility;

4.

The law otherwise requires the city to permit such location.

C.

Guidelines for Placement on a Structure. The preferred methods for mounting an antenna on a structure are, in order of preference, as follows:

1.

Mounted on an existing structure on the facade, roof or co-located on an existing antenna support structure;

2.

Mounted on an existing steel or concrete pole (i.e., light standard), in a stealth manner if feasible; or

3.

Mounted on new steel or concrete monopoles, in a stealth manner if feasible.

(Ord. No. 1373U, 12-8-15)

A.

General Development Standards. The following general development standards shall be applied to all new or modified wireless communication facilities:

1.

Compliance with the general plan and applicable specific plans;

2.

All wireless communication facilities shall be sited to minimize their impact upon scenic views. All wireless facility antennas, mounting hardware, and cabling shall be covered or painted to match the color and texture of the building, tower, or pole on which it is mounted;

3.

Wireless communication facilities located on vacant lots shall be considered temporary and the commission or city council, as the case may be, may impose conditions that such facilities shall be removed, and if appropriate, replaced with building-mounted facilities when the site is developed;

4.

All wireless communication facilities shall be substantially screened from view of surrounding properties and the public view in one or more of the following ways in a manner determined by the director:

a.

Screened with landscaping planted and maintained around the facility, in the vicinity of the facility, and along access roads as the director deems necessary. Such landscaping, including irrigation, shall be maintained until the wireless communication facility is removed from the site;

b.

Designed as stealth facilities;

c.

Co-located with an existing facility or structure so as to not create substantial visual impacts beyond those of the existing facility or structure.

5.

All wireless communication facilities shall be designed, located and operated to avoid interference with the quiet enjoyment of adjacent properties, and at a minimum shall be subject to the noise standards of Chapter 9.32 of this code. Where the director finds that the noise of such facility may have a detrimental effect on an adjacent property, he/she may require an independent acoustic analysis, at the applicant's expense, to identify appropriate mitigation measures;

6.

Except as otherwise provided by this chapter, a wireless communication facility on private property shall not exceed the height limit specified for the zone in which it is located. Facilities located on properties owned or controlled by the city shall not exceed sixty feet in height;

7.

Barbed wire, razor wire, electrified fence, and any other type of hazardous fence are prohibited;

8.

Equipment shelters shall be architecturally compatible with neighboring structures on- and off-site;

9.

No advertising or signs other than owner identification and warning signs approved by the director shall be allowed on-site;

10.

No wireless communication facility shall be located less than fifty feet from a residential property line. A variance may be granted to vary from this requirement upon the findings specified in Sections 17.60.020 and 17.93.040(B) of this title;

11.

No ground-mounted equipment within a public right-of-way may exceed a height of five feet and/or an area of fifteen square feet;

12.

Equipment sheds and other ground-level ancillary components of a wireless communications facility shall be constructed and maintained below grade whenever the commission or city council, as the case may be, determines that undergrounding is necessary to preserve scenic views, protect the aesthetics of surrounding properties, or for reasons of traffic or public safety. All vents, exhausts and similar features for undergrounded equipment shall be flush to grade to the maximum extent feasible; all above-grade vents, exhausts or similar features shall be designed to blend with the environment to maximum extent feasible.

B.

Development Standards for Roof-Mounted Facilities. In addition to all other applicable development standards, wireless communication facilities proposed to be mounted on existing or proposed buildings shall comply with the following standards:

1.

Antennas and ancillary equipment shall be scaled and designed to integrate with building design so as to be visually unobtrusive. Design techniques may include locating the facility behind parapets or within steeples or towers.

2.

If antennas are mounted flush against a building wall, the color and material of the antenna and other equipment shall match the exterior of the building.

3.

Roof-mounted antennas and equipment shall be located as far from the edge of the building as feasible.

C.

Development Standards for Monopoles. In addition to all other applicable development standards, monopoles shall comply with the following standards:

1.

An applicant shall demonstrate that a proposed facility cannot be placed on an existing building or co-located and the director may require an independent, third party review, at the applicant's expense, to identify alternatives to a proposed monopole.

2.

A monopole on private property shall not exceed the height limit established for the zone in which it is to be located, unless: the proposed facility is compatible with surrounding properties; the additional height is necessary to provide service within the city; and a conditional use permit is granted under the standards of Sections 17.60.040 and 17.93.040(B) of this title. In no event shall a monopole exceed sixty feet in height.

3.

Guywires or support structures shall not be allowed.

4.

Monopoles shall be designed to allow for co-location of additional antennas.

5.

Exterior lighting of monopoles is not permitted.

(Ord. No. 1373U, 12-8-15)

A.

New Facilities. Except for exempt facilities as specified in this chapter, all applications for approval of new wireless communication facilities must be approved in compliance with this section. Building permits shall be required for all approved wireless communication facilities, regardless of location.

1.

Private Property. All new wireless communication facilities located on private property shall require a conditional use permit approved by the planning commission pursuant to Chapter 17.60 of this title and this chapter.

2.

City-Owned Property. All new wireless communication facilities located on property owned or controlled by the city shall require city council approval of a conditional use permit pursuant to Chapter 17.60 of this title and this chapter, following a recommendation by the planning commission, and of a lease agreement.

3.

Public Rights-of-Way. All new wireless communication facilities, other than those operated by telephone corporations are permitted to install facilities in the public rights-of-way under Public Utilities Code section 7901, located within the public right-of-way, shall require approval of an encroachment permit under Section 12.12.030 of this code in addition to a conditional use permit and lease agreement pursuant to subsection (A)(2) of this section. New wireless communication facilities operated by telephone corporations permitted to install facilities in the public rights-of-way under Public Utilities Code section 7901 within the public right-of-way shall require the approval of an encroachment permit pursuant to the terms of Section 12.12.030 of this code.

B.

Changes to Existing Facilities. All permit applications which in any manner whatsoever seek approval to modify a previously approved facility received after the effective date of this section must be approved by the same review authority as if the applicant were applying for a new facility at that location as specified in subsection (A) of this section.

C.

Minor Modifications to Existing Facilities. All minor modifications to an existing wireless facility that meet the conditions of approval required for a conditional use permit for a wireless facility minor modification as specified in subsection (G) of this section shall be subject to the approval of (i) a conditional use permit by the planning and community preservation director, in addition to (ii) an encroachment permit (if located on city-owned property), and (iii) any other permit required by applicable provisions of this code.

D.

Application/Permit Fees. Each application for a permit under this chapter shall be accompanied by an application fee in an amount established from time to time by resolution of the city council. Application fees and building permit fees shall be waived for facilities to be located on properties owned or controlled by the city.

E.

Notice Requirements. Notice and hearing requirements for conditional use permits required by this chapter are those specified in Chapter 17.60 for conditional use permits generally.

F.

Application Requirements. Except as otherwise required by this chapter, applications for permits for wireless communication facilities shall be submitted and processed in accordance with the requirements of this title for conditional use permits generally. Any study or report, performed at the request of the city or by engineers or experts retained by the city, shall be at the applicant's sole expense. The director may obtain a third party, independent technical review of an application at the applicant's expense.

G.

Findings of Approval. The commission or, where required by this chapter or on appeal, the city council, may approve a conditional use permit for a wireless communication facility only upon making the necessary findings of approval for a conditional use permit set forth in Chapter 17.60 of this title and the following written findings based on substantial evidence of record:

1.

The placement, construction, or modification of a wireless telecommunications facility in the proposed location is necessary for the provision of wireless services by closing a significant gap in the applicant's existing wireless service coverage.

2.

The proposal demonstrates a reasonable attempt to minimize standalone facilities, is designed to protect the visual quality of the city to the maximum extent practicable, and will not have an undue adverse impact on historic resources, scenic views, or other natural or manmade resources.

3.

That one of the following is true: (a) all applicable requirements and standards of this chapter have been met; (b) a variance has been granted from any requirement or standard of this chapter which has not been met; or (c) strict compliance with the requirements and standards of this chapter would not provide for adequate radio frequency signal reception and that no other alternative design of the facility that would meet the development standards is feasible.

4.

In addition to the findings required in subsections (G)(1)—(3) above, no proposed new or substantially modified wireless telecommunication facility within a public right-of-way may be approved unless the following findings are made:

a.

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

b.

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

H.

Findings Required for Approval of Minor Modifications to Existing Wireless Facilities. An applicant seeking approval of a collocation or modification to an existing wireless telecommunication facility which the applicant contends is within the protection of Title 47, U.S.C., section 1455, and qualifies as a minor or not substantial modification, must apply for and receive approval of a conditional use permit for a minor modification of a wireless facility in compliance with this section. This subsection is intended to comply with the city's obligations under federal law, which provides that the city "may not deny, and shall approve any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." (47 U.S.C. § 1455, subd. (a)(1), adopted as Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L No. 112-96, 126 Stat. 156.) This subsection sets forth standards for the city to review an application for a wireless facility minor modification permit submitted by an applicant who asserts that a proposed collocation or modification to an existing wireless telecommunications facility is covered by this federal law. The city's review of these applications is structured to comply with the requirements of Title 47, U.S.C., section 1455 and the Federal Communications Commission's regulations implementing this federal law, adopted on December 17, 2014 and codified at 47 C.F.R. §§ 1.40001 et seq. Consistent with Section 17.93.010(J), this subsection is intended to promote the public's health, safety, and welfare, and shall be interpreted consistent with the federal Telecommunications Act of 1996 (Pub.L. No. 104-104, 110 Stat. 56), Title 47, U.S.C., section 1455, and applicable Federal Communications Commission regulations and court decisions considering these laws and regulations. Under federal law, the city must approve or deny an application for a wireless facility permit for a minor modification, together with any other city permits required for a proposed wireless facility minor modification, within sixty days after the applicant submits the application for a wireless facility permit which the applicant contends is protected by Title 47, U.S.C., section 1455, unless tolled due to issuance of any notice of incomplete filing or by mutual agreement between the city and the applicant. Under federal law, failure to act on a wireless facility permit application for a minor modification within the sixty-day review period, excluding tolling period, may result in the permit being deemed granted by operation of law. In that case, the applicant must still comply with the standard conditions of approval in this subsection.

1.

The planning and community preservation director must approve an application for a conditional use permit for a wireless facility minor modification that is a collocation or modification to an existing wireless tower on private property which the applicant contends is within the protection of Title 47, U.S.C., Section 1455 only if each of the following findings can be made:

a.

The applicant proposes a collocation or modification to a structure constructed and maintained with all necessary permits in good standing for the sole or primary purpose of supporting any Federal Communications Commission licensed or authorized antennas and their associated facilities;

b.

The proposed collocation or modification does not increase the height of the existing wireless telecommunication facility above its lowest height on February 22, 2012, or as approved if constructed after February 22, 2012 by more than ten percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater;

c.

The proposed collocation or modification does not increase the width of the facility by more than twenty feet or the width of the tower at the level of the appurtenance, whichever is greater;

d.

The proposed collocation or modification does not involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four;

e.

The proposed collocation or modification does not involve any excavation outside the lease or license area of the facility, including any access or utility easements;

f.

The proposed collocation or modification does not defeat any existing concealment, stealth, or camouflage elements of the support structure; and

g.

The proposed collocation or modification does not violate any prior conditions of approval, except as may be preempted by Section 6409, Title 47, U.S.C., section 1455, subdivision (a).

2.

The planning and community preservation director must approve an application for a conditional use permit for a wireless facility minor modification that is a collocation or modification to an existing base station on private property which the applicant contends is within the protection of Title 47, U.S.C., section 1455 only if each of the following findings can be made:

a.

The applicant proposes a collocation or modification to a structure constructed and maintained with all necessary permits in good standing, whether built for the sole or primary purpose of supporting any Federal Communications Commission licensed or authorized antennas and their associated facilities or not, that currently supports existing wireless transmission equipment;

b.

The proposed collocation or modification does not increase the height of the existing wireless telecommunication facility above its lowest height on February 22, 2012, or as approved if constructed after February 22, 2012 by more than ten percent or ten feet, whichever is greater;

c.

The proposed collocation or modification does not increase the width of the facility by more than six feet;

d.

The proposed collocation or modification does not involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four;

e.

The proposed collocation or modification does not involve any excavation outside the lease or license area of the facility, including any access and utility easements;

f.

The proposed collocation or modification does not defeat any existing concealment, stealth, or camouflage elements of the support structure; and

g.

The proposed collocation or modification does not violate any prior conditions of approval, except as may be preempted by Section 6409, Title 47, U.S.C., section 1455, subdivision (a).

3.

The planning and community preservation director must approve an application for a conditional use permit for a wireless facility minor modification that is a collocation or modification to an existing wireless tower or base station in the public right-of-way only which the applicant contends is within the protection of Title 47, U.S.C., section 1455 if each of the following findings can be made:

a.

The applicant proposes a collocation or modification to either (i) a structure constructed and maintained with all necessary permits in good standing for the sole or primary purpose of supporting any Federal Communications Commission licensed or authorized antennas and their associated facilities or (ii) a structure constructed and maintained with all necessary permits in good standing, whether built for the sole or primary purpose of supporting any Federal Communications Commission licensed or authorized antennas and their associated facilities or not, that currently supports existing wireless transmission equipment;

b.

The proposed collocation or modification does not increase the height of the existing wireless telecommunication facility above its lowest height on February 22, 2012, or as approved if constructed after February 22, 2012, by more than ten percent or ten feet, whichever is greater;

c.

The proposed collocation or modification does not increase the width of the facility by more than six feet;

d.

The proposed collocation or modification does not involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four;

e.

The proposed collocation or modification does not involve either (i) the installation of any new equipment cabinets on the ground, if none already exist, or (ii) the installation of ground equipment cabinets that are more than ten percent larger in height or overall volume than any existing ground cabinets;

f.

The proposed collocation or modification does not involve any excavation outside the area in proximity to the existing ground-mounted equipment in the public right-of-way;

g.

The proposed collocation or modification does not defeat any existing concealment, stealth, or camouflage elements of the existing structure; and

h.

The proposed collocation or modification does not violate any prior conditions of approval, except as may be preempted by Section 6409, Title 47, U.S.C., section 1455, subdivision (a).

(Ord. No. 1373U, 12-8-15)

Wireless communication facilities shall comply with the following operation and maintenance standards at all times. Failure to comply shall be considered a violation of the conditions of approval and constitute a violation of this code subject to any remedy available under this code or applicable law as well as a basis for revocation of a permit pursuant to Section 17.60.160 of this title. All facilities subject to a conditional use or encroachment permit approved under this section, including any facilities for which a permit is deemed approved by operation of law, shall be subject to the following standards as automatic conditions of approval:

A.

Except for exempt facilities, a maintenance and facility removal agreement shall be executed by the operator and the property owner (if other than the city). No permit shall become effective until such agreement has been executed. Said agreement shall bind the operator and property owner and their successors and assigns as to the facility to the following:

1.

Maintain the appearance of the facility;

2.

Remove the facility when required by this chapter and any conditions of approval or when it is no longer in use no later than thirty days after the discontinuation of use. Disuse for thirty days or more shall also constitute a voluntary termination by the applicant of any land use entitlement under this code or any predecessor to this code;

3.

Pay all costs the city reasonably incurs to monitor a facility's compliance with conditions of approval and applicable law;

4.

Reimburse the city for any and all costs incurred for work required by this chapter, applicable law, or the conditions of a permit issued by the city for the facility which the operator and property owner fail to perform after written notice from the city to do so;

5.

Where the commission or council, as the case may be, determines that it is necessary to ensure compliance with the conditions of approval or removal of a facility that is temporary in nature or upon its disuse, the operator or owner shall post a performance bond, cash or a letter of credit or other security acceptable to the director in the amount of ten thousand dollars, or such higher amount as the director reasonably determines is necessary to ensure compliance with the maintenance and facility removal agreement.

6.

The applicant, operator of a facility and property owner (when applicable) shall defend, indemnify and hold the city and its elective and appointed boards, commissions, officers, agents, consultants and employees harmless from and against all demands, liabilities, costs (including attorneys' fees), or damages arising from the city's review and approval of the design, construction, operation, location, inspection or maintenance of the facility.

B.

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

C.

Each wireless communication facility shall include signage approved by the director identifying the name and phone number of a party to contact in the event of an emergency. Such signage must comply with any applicable provisions of this title. Where a utility pole or light standard is utilized as support structures, the signage shall be attached to the base of the pole or standard. Facilities shall not bear any signs or advertising devices other than this contact information, any other legally required certification, warning, or other required seals or signage, or as expressly authorized by the city in writing.

D.

Wireless communication facilities and the sites on which they are located shall be maintained in good repair, free from trash, debris, litter and graffiti and other forms of vandalism, and any damage from any cause shall be repaired within five days of written notice by the city to do so. Graffiti shall be removed as soon as practicable, and within forty-eight hours of notice by the city to do so.

E.

The owner or operator of a wireless communication facility shall maintain landscaping in accordance with an approved landscape plan and shall replace dangerous and/or dead trees, foliage or other landscape elements shown on the approved plans. Amendments or modifications to the landscape plan shall be approved pursuant to Section 17.60.025 of this title.

F.

A wireless communication facility shall be operated to minimize noise impacts to surrounding residents and persons using nearby facilities and recreation areas. All equipment that may emit noise in excess of the levels permitted by Chapter 9.32 of this code shall be enclosed. Backup generators shall only be used during periods of power outages or for testing.

G.

Temporary power shall be allowed during the initial construction or major repair of a facility for not more than five business days.

H.

Vehicle and personnel access to the sites for maintenance and repairs shall not be made from residential streets or adjacent residential properties to the maximum extent possible.

I.

Electromagnetic Field Exposure.

1.

Wireless communication facilities operating alone and in conjunction with other wireless communication facilities shall not generate electromagnetic field (EMF) exposure or other measurable radiation in excess of the standards for permissible human exposure, as provided by applicable federal regulations.

2.

Within sixty days of a wireless communications facility becoming operational, the applicant shall provide the director a report indicating the actual EMF levels measured at the property line or nearest point of public access, whichever is closer, in the direction of maximum radiation from each antenna. Reports shall specify signal levels with the site operating at full power and baseline levels with the site inoperative. Technical data shall be presented showing levels relative to the currently permitted federal regulations. Raw measurements shall be provided as an appendix. In addition, the report shall summarize in lay terms the technical data presented.

3.

Every two years, the operator of a wireless communication facility shall test EMF exposure levels and submit a written report of test results to the director. In years when testing is not required, the operator of a wireless communication facility shall submit to the director written certification by an independent licensed engineer that no modifications have been made to the facility design or configuration that have increased or will increase EMF exposure as compared to the permitted facilities or the facilities that were present at the time of the last report to the director. If modifications have been made to the facility which have increased or will likely increase EMF exposure, the operator shall provide a supplemental report measuring the modified facility.

4.

EMF reports required by this section shall be paid for by the applicant and prepared by a third party consultant acceptable to the director using a testing protocol acceptable to the director.

J.

In addition to any other conditions of approval permitted under federal and state law and the above performance standards and any other conditions of approval that the director deems appropriate or required under this code, all conditional use or encroachment permits for wireless facility minor modifications subject to Title 47, U.S.C., section 1455, including any minor modifications for which a permit is deemed approved by operation of law, shall be subject to the following conditions of approval:

1.

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

2.

Compliance with Previous Approvals. The grant or approval of a permit for a wireless facility minor modification shall be subject to the conditions of approval of the underlying permit, except as may be preempted by Section 6409, subdivision (a).

3.

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

4.

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

5.

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

6.

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

7.

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

8.

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

9.

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

(Ord. No. 1373U, 12-8-15)

A.

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

B.

Applicability. An applicant seeking approval of a collocation to an existing structure or a deployment to a new structure which the applicant contends is within the protection of Title 47, U.S.C., sections 332(c)(7) and 1455 and 47 C.F.R. section 1.6001 et seq. shall apply for the following at the same time: (i) a small wireless facility permit, (ii) an encroachment permit from the public works department (if required by applicable provisions of the city's Municipal Code), and (iii) any other permit required by applicable provisions of the Code including a building permit or an electrical permit.

C.

Application Content: All applications for a small wireless facility permit must include the following items:

1.

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

2.

Application Fee. An application fee of $1,000.00 to cover staff and consultant costs or such other amount as may be established by the city council by resolution.

3.

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

a.

A site plan and elevation drawings for the facility as existing and as proposed with all height and width measurements explicitly stated.

b.

A depiction, with height and width measurements explicitly stated, of all existing and proposed transmission equipment.

c.

A depiction of all existing and proposed utility runs and points of contact.

d.

A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plan view.

e.

For proposed collocation or deployment to wireless towers, the plans must include scaled plan views and all four elevations that depict the physical dimensions of the wireless tower as it existed on a demolition plan.

4.

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

5.

Statement Asserting that 47 C.F.R. Section 1.6001 et seq. applies. A written statement asserting that the proposed collocation or deployment meets the federal, state and City standards and qualifications for a small wireless facility and explaining why those standards are met.

6.

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

7.

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

8.

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

9.

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

D.

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

E.

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

F.

Standards Governing Approval by Director.

a.

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

i.

The existing structure was constructed and maintained with all necessary permits in good standing.

ii.

The existing structure is fifty feet or less in height, including any antennas, or the existing structure is no more than ten percent taller than other adjacent structures.

iii.

Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume.

iv.

All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment serving the facility, is no more than twenty-eight cubic feet in volume.

v.

The small wireless facilities do not extend the existing structure on which they are located to a height of more than fifty feet or by more than ten percent, whichever is greater.

vi.

The small wireless facility does not require an antenna structure registration under part 47 C.F.R. section 17.1 et seq.

vii.

The small wireless facility is not located on Tribal lands, as defined under 36 C.F.R. section 800.16(x).

viii.

The proposed collocation is consistent with the wireless facility permit location requirements of Section 17.93.060.

ix.

The proposed collocation is consistent with the development requirements and standards of Section 17.93.070.

x.

The proposed collocation is consistent with the conditional use and encroachment permit requirements of Section 17.93.080.

xi.

The proposed collocation is consistent with the operation and maintenance standards provisions of Section 17.93.090.

xii.

The proposed collocation would be in the most preferred location and configuration within two hundred fifty feet from the proposed site in any direction or the applicant has demonstrated with clear and convincing evidence in the written record that any more-preferred location or configuration within two hundred fifty feet would be technically infeasible, applying the preference standards of this section.

xiii.

The proposed collocation is designed as a stealth facility, to the maximum feasible extent. All facilities shall include appropriate stealth and concealment techniques given the proposed location, design, visual environment, and nearby uses and/or structures. All equipment shall be placed underground to the maximum extent feasible. All wires, cables, and any other connections shall be completely concealed from public view to the maximum extent feasible.

b.

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

i.

The new or replacement structure was constructed and maintained with all necessary permits in good standing;

ii.

The new or replacement structure is fifty feet or less in height, including any antennas, or the new or replacement structure is no more than ten percent taller than other adjacent structures;

iii.

Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume;

iv.

All other wireless equipment associated with the facility, including the wireless equipment associated with the antenna and any pre-existing equipment associated with the facility, is no more than twenty-eight cubic feet in volume;

v.

The small wireless facility does not require an antenna structure registration under part 47 C.F.R. section 17.1 et seq.;

vi.

The small wireless facility is not located on Tribal lands, as defined under 36 C.F.R. section 800.16(x);

vii.

The proposed facility is consistent with the wireless facility permit location requirements of Section 17.93.060;

viii.

The proposed facility is consistent with the development requirements and standards of Section 17.93.070;

ix.

The proposed facility is consistent with the conditional use and encroachment permit requirements of Section 17.93.080;

x.

The proposed facility is consistent with the operation and maintenance standards provisions of Section 17.93.090;

xi.

The proposed facility would be in the most preferred location and configuration within two hundred fifty feet from the proposed site in any direction or the applicant has demonstrated with clear and convincing evidence in the written record that any more-preferred location or configuration within two hundred fifty feet would be technically infeasible, applying the preference standards of this section;

xii.

The proposed facility is designed as a stealth facility, to the maximum feasible extent. All facilities shall include appropriate stealth and concealment techniques given the proposed location, design, visual environment, and nearby uses and/or structures. All equipment shall be placed underground to the maximum extent feasible. All wires, cables, and any other connections shall be completely concealed from public view to the maximum extent feasible. Stealth and concealment techniques for small wireless facilities do not include incorporating faux-tree designs.

c.

Small Cell Location and Configuration Preferences. The city prefers that small wireless facilities in the public right of way be configured on the following support structures, in order of preference from most to least preferred: existing or replacement street light standard; existing or replacement concrete or steel utility pole; existing or replacement wood utility pole: new street light standard: new utility pole. The city prefers that small wireless facilities outside the public right of way be configured on the following support structures, in order of preference from most to least preferred: on existing, approved wireless facility support structures operating in compliance with the Municipal Code; on existing buildings or non-tower structures; on existing or replacement utility poles or towers; in new towers meeting the height requirements of the applicable FCC regulations.

G.

Conditions of Approval for Small Wireless Facility Permits. In addition to any other conditions of approval permitted under federal and state law and the Municipal Code that the director deems appropriate or required under this code, all small wireless facility permits under this subsection issued by the city of deemed approved by operation of law shall include the following conditions of approval:

1.

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

2.

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

3.

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

4.

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

5.

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

6.

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

7.

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

8.

In the event that a court of competent jurisdiction invalidates or limits, in part or in whole, Title 47, U.S.C., section 1455, or the Federal Communications Commission's Declaratory Ruling and Report and Order (FCC18-133) adopting 47 C.F.R. section 1.6001 et seq., such that such statute would not mandate approval for the collocation or deployment granted or deemed granted under a wireless facility minor modification permit, such permit shall automatically expire twelve months from the date of that opinion.

9.

The grant, deemed-grant or acceptance of a small wireless facility permit shall not waive and shall not be construed or deemed to waive the city's standing in a court of competent jurisdiction to challenge Title 47, U.S.C., section 1455 or the Federal Communications Commission's Declaratory Ruling and Report and Order (FCC18-133) adopting 47 C.F.R. section 1.6001 et seq. or any small wireless facility permit issued pursuant to Title 47, U.S.C., section 1455, the Federal Communications Commission's Declaratory Ruling and Report and Order (FCC 18-133) adopting 47 C. F. R. section 16001 et seq., or the city's Municipal Code.

H.

Small Wireless Facility Permit Denial Without Prejudice.

1.

Grounds for Denial Without Prejudice. The director may deny without prejudice an application for a small wireless facility permit in any of the following circumstances:

a.

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

b.

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

c.

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

d.

The proposed collocation or deployment does not qualify for mandatory approval under Title 47, U.S.C., section 1455, and 47 C.F.R. section 1.6001 et seq., as may be amended or superseded, and as may be interpreted by any order of the Federal Communications Commission or any court of competent jurisdiction.

2.

Procedures for Denial Without Prejudice. All small wireless facility permit application denials shall be in writing and shall include (i) the decision date; (ii) a statement that the city denies the permit without prejudice; (iii) a short and plain statement of the basis for the denial; and (iv) that the applicant may submit the same or substantially the same permit application in the future.

3.

Submittal After Denial Without Prejudice. After the director denies a small wireless facility permit application, and subject to the generally applicable permit application submittal provisions in this chapter, an applicant shall be allowed to:

a.

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

b.

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

c.

Submit an appeal of the director's decision.

4.

Costs to Review a Denied Permit. The city shall be entitled to recover the reasonable costs for its review of any small wireless facility permit application. In the event that the director denies a small wireless facility permit application, the city shall return any unused deposit fees within sixty days after a written request from the applicant. An applicant shall not be allowed to submit a small wireless facility permit application for the same or substantially the same proposed modification unless all costs for the previously denied permit application are paid in full.

(Ord. No. 1410-U, § 4, 3-26-19; Ord. No. 1411, § 3, 4-9-19)

A permit for a wireless communication facility shall expire one year after permit approval unless the applicant has obtained by that time approval of a building permit and has requested an initial building inspection.

A.

Duration of Permits and Approval.

1.

Permits for wireless communication facilities shall be valid for an initial maximum period of ten years, or as specified by the approving body, from the date of the initial building inspection.

2.

A permit may be extended without a public hearing for a maximum of three, two-year terms by the director upon verification of continued compliance with conditions of approval under which the permit was originally approved and a determination based on substantial evidence in the record of his/her decision that findings for issuance of a new facility could be made.

3.

A permit may be revoked pursuant to Section 17.60.160 of this title.

4.

All costs reasonably incurred by the city in verifying compliance and in extending or revoking an approval shall be borne by the permit holder.

B.

Discontinuance of Use. All equipment and improvements associated with a wireless communication facility shall be removed within thirty days of the discontinuation of the use and the site shall be restored to its original, preconstruction condition, or other as approved by the director. For facilities located on property owned or controlled by the city, this requirement shall be included in the lease. Written verification of the removal of a facility from private property shall be provided to the director within thirty days of the discontinuation of the use.

1.

The operator shall be responsible for removing the wireless communication facility from the site within thirty days of discontinuation of use. If an operator fails to remove a wireless communication facility from the site within thirty days of discontinuation, the property owner shall be responsible for removal.

2.

If a facility is not removed within the required thirty days, the site may be deemed a public nuisance and a code violation.

3.

Failure to inform the director of cessation of use of any existing facility shall constitute a violation of this code and be grounds for: prosecution or revocation or modification of a permit.

C.

Existing Facilities. All equipment and improvements associated with a wireless communication facility permitted as of the date of the adoption of the ordinance codified in this chapter may continue as they presently exist, but constitute legal nonconforming uses to the extent they do not conform to the standards of this chapter. Routine maintenance on existing, operational equipment and facilities shall not require compliance with this chapter. However, replacement or modification of a facility shall require issuance of a permit pursuant to, and in compliance with, this chapter.

D.

Removal of Unsafe Facilities. If, at any time after ten years of the issuance of a building permit or encroachment permit, or any shorter period permitted by Government Code Section 65964(b), any wireless telecommunication facility becomes incompatible with public health, safety or welfare, the applicant or operator of the facility shall, upon notice from the city and at the applicant's or operator's own expense, remove that facility. Written notice of a determination pursuant to this paragraph shall be sent to the owner and operator of the wireless telecommunication facility, who shall be entitled to a hearing on that determination before the city manager or a hearing officer appointed by the city manager, provided that written request for such a hearing is received by the city clerk within ten days of the date of the notice. No further appeal from the decision of the city manager may be had other than pursuant to Code of Civil Procedure Section 1094.5. Upon a final decision of the city manager or the running of the time for a request for a hearing without such a request, the operator shall have ninety days to remove the facility.

(Ord. No. 1373U, 12-8-15; Ord. No. 1410-U, § 5, 3-26-19; Ord. No. 1411, § 4, 4-9-19)

Editor's note— Ord. No. 1410-U, § 5, adopted March 26, 2019, renumbered former § 17.93.100 as § 17.93.110.