HomeMy WebLinkAboutDraft Wireless Ordinance No. 1673 Ordinance No. 1673
ORDINANCE NO. 1673
AN ORDINANCE OF THE SEAL BEACH CITY COUNCIL AMENDING
CHAPTER 6.10 OF TITLE 6 OF THE SEAL BEACH MUNICIPAL CODE TO
AMEND SECTION 6.10.010 AND SECTION 6.10.065, REPEAL SECTION
6.10.070, AND ADD NEW SECTIONS 6.10.070 AND 6.10.075
REGULATING WIRELESS COMMUNICATIONS FACILITIES IN THE
PUBLIC RIGHTS-OF-WAY
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DQE : ORDAIN AS FOLLOWS:
SECTION 1. The City Council of the City of Seal<' e ;'ihereby amends Section
6.10.010 (Definitions) of Chapter 6.10 (Cable, Video o f °telecom unications) of Title 6
(Franchises) to include the following definitions:
"Action or to act: the approval authority's grant of art application for a small wireless facility,
eligible facility, or other wireless communications facility, or issuance of a written decision
denying an application, pursuant to Section 6.10.070 or 6.10.075 of this chapter.
Antenna: any system of poles, panels, rods, reflecting discs or similar devices used for the
transmission or reception of electromagnetic waves of radio frequency signals, including
devices with active elements extending ,in any direction, acid € rrectional parasitic arrays with
elements attached to a generally horizontal boom which may Itigibounted on a vertical support
structure. <�::,,::,:.<..>.,i,,,:...
Amateur radio antenna: any antenna used<for transmitting and receiving radio signals in
conjunction with an amateur radio station licensed by the Federal Communications Commission
(FCC).
Antenna equipment: equipment, swit hes, wiring Cabling, power sources, shelters or cabinets
associated with an antenna, located!at t e carne`fixed location as the antenna, and, when
collocated on a structure,;*mount or Ifitthltett the same time as such antenna.
Antenna facility: an antenna'and€associated antenna equipment.
Applicant: anpEaturaf pet' dt1, firm;' pership, association, joint venture corporation, or other
entity (or combination of enttiti s),, and the agents, employees, and contractors of such person or
entity that;seeks City permits crother authorizations under this chapter.
Approval author ity: the offie si or body designated to review and issue a decision on a
proposed permit:f O her authOrization under this chapter.
Authorization: any approval that the approval authority must issue under applicable law prior to
the installation, construction or other deployment of a small wireless facility, eligible facility, or
any other wireless communications facility under Section 6.10.070 or Section 6.10.075 of this
chapter, including, but not limited to, encroachment permit, excavation permit, zoning approval
and/or building permit.
Building or roof mounted: an antenna mounted on the side or top of a building or another
structure (e.g., water tank, billboard, church steeple, freestanding sign, etc.), where the entire
weight of the antenna is supported by the building, through the use of an approved framework
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or other structural system which is attached to one or more structural members of the roof or
walls of the building.
C.F.R: the Code of Federal Regulations.
Collocation (also known as "colocation" or "co-location"):
(1) For a small wireless facility subject to Section 6.10.070 of this chapter,
"collocation" means: (a) mounting or installing an antenna facility ori '' a pre-existing structure,
and/or (b) modifying a structure for the purpose of mounting or installing an antenna facility on
that structure.
(2) For an eligible facility subject to Section 6.10X175 of thiis;:;chapter, "collocation"
has the meaning set forth in Section 6.10.075.8 of this chapter.
(3) For any other wireless communicationfality subject to Section 6.10.070 of this
chapter, "collocation" means the location of 2r more wireless, hard wire, or cable
communication facilities on a single support structure or otherwise sharing a common location.
Collocation shall also include the location of com min cation facilities with other facilities (e.g.,
water tanks, light standards, and other utility facilitiesr ; factures).
Competitive Local Carrier (CLC): a tellecommunicationsq pany that competes with local
telephone companies in providing loca ex Mange. service, as :defined and regulated by the
CPUC pursuant to Public Utilities Code Se tijort 1001<ae.nded`
CPUC: the California Public Utilities Commission. ._
Deployment: the installation, placement construction, or modification of a small wireless
facility, eligible facility or other wireless communications facility.
Director: the Public Work- Director sof the44 Dal Beach.
Dish antenna: a dish-like antenna used to link communication sites together by wireless
transmissions of voice or dataS:o called microwave dish antenna.
Distributed antenna system (DAS) a;network of one or more antenna and fiber optic nodes
connecting to a'<common based station or'
"hub."
Electromagnetic field: the lodifilectric and magnetic fields caused by voltage and the flow of
electricity that envelop the spat surrounding an electrical conductor.
Eligible facility: a:Sdefinectii,Section 6409. See Section 6.10.075 of this chapter.
Equipment cabinet : a``f.6abinet or structure used to house equipment associated with a
wireless, hard wire, or cable communication facility.
FAA: the Federal Aviation Administration.
Ground mounted: any freestanding antenna, the entire weight of which is supported by an
approved freestanding platform, framework, or other structural system which is attached to the
ground by a foundation.
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JFTB Los Alamitos: the Joint Forces Training Base, Los Alamitos, California, also known as
the Los Alamitos Army Airfield.
Ministerial permit: – an excavation permit, encroachment permit, or building permit and any
required ministerial permit application form and supporting documents required by the City.
Monopole: a single freestanding pole, post, or similar structure, used to support equipment
associated with a single communication facility.
NEPA: the National Environmental Policy Act.
NHPA: the National Historical Preservation Act.
Naval Weapons Station (NWS): the Naval Weapon Station`Seal Beach,California.
Panel: an antenna or array of antennas that are flat and rectangular and are designed to
concentrate a radio signal in a particular area. Also::r:. ferred to as.a directional antenna.
Permittee: includes the applicant and all successbAR:intecOrto the Wireless Communications
Facility Permit (WFCP) issued by the City pursuartion 6.10.070 or 6.10.075 of this
chapter, and any related ministerial permit approved by'ffity.
Pole: a single shaft of wood, steel, ooncre(e,:,;;or other matt r al: capable of supporting the
equipment mounted thereon in a safe a :adg
ett'tanner and as required by provisions of
this code.
Public right-of-way (PROW): any public roads highway, sidewalk or other area described in
and subject to California Publi ' itft#lities Cod ` Section 7901 or 7901.1, as interpreted by
applicable case law, and ownedjiddfited, leased rpt otherwise under the control of the city.
RF: radio frequency. .jim
Section 6409: Section 64)901.0iite Middle Class Tax Relief and Job Creation Act of 2012,
Pub. L. No. 112-96, 126 Stat i ;.codified as 47 U.S.C. Section 1455(a) (the "Spectrum Act"),
as may be amended
Small wirelessfacility(ies) 'a;facility that meets each of the following conditions:
(1)Thefacility—
is mounted on structures 50 feet or less in height including its antennas
as defined in this 444101; ¢f '`.
(ii) is 'Mounted on structures no more than 10 percent taller than other
adjacent structures, or
(iii) does not extend existing structures on which it is located to a height of
more than 50 feet or by more than 10 percent, whichever is greater;
(2) Each antenna associated with the deployment, excluding associated antenna
equipment (as defined in this section), is no more than three cubic feet in volume;
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(3) All other wireless equipment associated with the structure, including the wireless
equipment associated with the antenna and any pre-existing associated equipment on the
structure, is no more than 28 cubic feet in volume;
(4) The facility does not require antenna structure registration under Part 17 of
Subchapter A of Chapter 1 of Title 47 C.F.R., or its successor regulations;
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. Section
800.16(x), or its successor regulation; and
(6) The facility does not result in human exposure to radio frequency radiation in excess
of the applicable safety standards specified in 47 C.F.R. Section t1307(b), or its successor
regulation.
Stealth facility: a telecommunications facility that is designed to blend info'tle surrounding
environment, typically one that is architecturally integrated into a structure. Also to as a
concealed antenna.
Structure: a pole, tower, base station, or other.ji ing,;:.whether or not it has an existing
antenna facility, that is used or to be used for the prattsiiip f wireless communications service
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(whether on its own or comingled with other types of servi )..
Telephone corporation: any person, .pprgw,ifirm or entity at qualifies as a "telephone
corporation" pursuant to California Public iiiift t ?'k.�.ection 234 as amended from time to
time. :::::>::>::::>:::;.;:.
Temporary wireless communications facility:. 't'''Portable wireless facilities intended or used
to provide wireless communis l;to ng;services Ona temporary or emergency basis, such as a
large-scale special event in which mare users than'Usual gather in a confined location or when a
disaster disables permanet'wirelesSfacilities. Temporary wireless communications facilities
include, without limitationcells-on-whee#s (;Ct AN"), sites-on-wheels ("SOWs"), cells-on-light-
trucks ("COLTs") or othersifnilarly Ottable'wireless facilities not permanently affixed to site on
which it is located.
Tower: any ground or roof moue pole, spire, structure, or combination thereof taller than 15
feet, including.: ; pportinigtlies, cabt >;;:wires, braces, and masts, intended primarily for the
purpose of mounting an antenna..or simitsr apparatus above grade.
Whip anteitaa,an antenna consisting of a single, slender, rod-like element, which is supported
only at or near! g base. They are typically less than 6 inches in diameter and measure up to 18
feet in height. Atsa referred to.us•omnidirectional, stick or pipe antennas.
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Wireless communications facility(ies) (WCF or WCFs): public, commercial and private
electromagnetic and photoelectrical transmission, broadcast, repeater and receiving stations for
radio, television, telegraph, telephone, data network, and wireless telecommunications,
including commercial earth stations for satellite-based communications, whether such service is
provided on a stand-alone basis or commingled with other wireless communications services.
Includes antennas, commercial satellite dish antennas, and equipment buildings. Does not
include telephone, telegraph and cable television transmission facilities utilizing hard-wired or
direct cable connections.
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Wireless communications collocation facility: the same as a "wireless telecommunications
colocation facility" is defined in Government Code Section 65850.6, as may be amended, which
defines a "wireless telecommunications colocation facility" as a wireless telecommunications
facility that includes colocation facilities; a "colocation facility" as the placement or installation of
wireless facilities, including antennas, and related equipment, on, or immediately adjacent to, a
wireless telecommunications colocation facility; a "wireless telecommunications facility" as
equipment and network components such as towers, utility poles, transmitters, base stations,
and emergency power systems that are integral to providing wireless telecommunications
services.
Wireless Communications Facility Permit (WCFP): a permit issued by the City pursuant to
this chapter, and including the following categories:
1. Small Wireless Facility Permit (SMFP.) a permit issu #,; by the Director
pursuant to the requirements of Section 6.10.070 of this chapter for (a) the deployment of a new
small wireless facility, or (b) the replacement of, collocation on, or modification of an existing
small wireless facility.
2. Eligible Facility Permit (EFP): a permit, iss40for an eligible facility as defined
in and subject to the requirements of Section 6.10.0750t# is chapter.
3. Administrative Wireless communications`Faulty Permit (AWCFP): a permit
issued by the Director pursuant to Se i .;1;0 Q70 of this chapter for the replacement of,
collocation on or modification of any exist)i g.WC ar th ;deployment of a new WCF, other than
a small wireless facility or an eligible facility,
Wireless communications services: the ;;provision of services using a wireless
communications facility, and shelf i olude but not limited to, the following services: personal
wireless services as defined m the federal Telecommunications Act of 1996 at 47 U.S.C.
§ 332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or
data radio telecommunications."
SECTION 2. The ity Council of the City of Seal Beach hereby amends Subsection B
of Section 6.10.065 (Teleconninications Services Provided by Telephone Corporations) of
Chapter 6.10 (CabI it o,.and T to ommunications) of Title 6 (Franchises) to read as follows:
[new language tS h►aiili :
"6.10.065 Telecommunications Service Provided by Telephone Corporations.
A. The city ouncil finds at1 €determines as follows:
1. The 0 #.1:00ations Act preempts and declares invalid all state rules that
restrict entry or limit coMOtition in both local and long-distance telephone service.
2. The California Public Utilities Commission ("CPUC") is primarily responsible for
the implementation of local telephone competition, and it issues certificates of public
convenience and necessity to new entrants that are qualified to provide competitive local
telephone exchange services and related communications service, whether using their own
facilities or the facilities or services provided by other authorized telephone corporations.
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3. Public Utilities Code Section 234(a) defines a "telephone corporation" as "every
corporation or person owning, controlling, operating, or managing any telephone line for
compensation within this state."
4. Public Utilities Code Section 616 provides that a telephone corporation "may
condemn any property necessary for the construction and maintenance of its telephone line."
5. Public Utilities Code Section 2902 authorizes municipal corporations to retain
their powers of control to supervise and regulate the relationships. l tween a public utility and
the general public in matters affecting the health, convenience, and safety of the general public,
including matters such as the use and repair of public streetsiy any public utility and the
location of the poles, wires, mains, or conduits of any public utility on, under, or above any
public streets.
6. Public Utilities Code Section 7901 *ithorizes telephbriagand telegraph
corporations to construct telephone or telegraph line'along and upon any'?public road or
highway, along or across any of the waters or landsttithin this:state, and to erect poles, posts,
piers or abutments for supporting the insulators, wires and other necessary fixtures of their
lines, in such manner and at such points as not to incommode the public use of the road or
highway or interrupt the navigation of the waters.
7. Public Utilities Code Section 7901.1 confirms ,;the right of municipalities to
exercise reasonable control as to the tiepla ;::and manner which roads, highways, and
waterways are accessed, which control rei t bap a to;;_all„entities in an equivalent manner.
Nothing in Section 7901.1 adds to or subtracts frotifiittriy;:eMiting authority that municipalities
have with respect to the imposition of fees. 111.
8. Government Code ition 50030 provides that any permit fee imposed by a city
for the placement, installation, repairr upgradrnp<of communications facilities, such as lines,
poles, or antennas, by a telephone Orporation that has obtained all required authorizations
from the CPUC and theFCC to vie. m
comunications services, must not exceed the
reasonable costs of prtMdi€rg the setvtce for which the fee is charged, and must not be levied
for general revenue purpo8 , ,,
B. In recogn#t €::::and in earrtliance with the statutory authorizations and requirements
set forth above;;>:ttfa foltow* g,regul tor'y> provisions are applicable to a telephone corporation
that desires;t ilprovide comm nications service by means of facilities that are proposed to be
constructett installed or otherivie deployed within public rights-of-way:
1. The telephone `poration must apply for and obtain, as may be applicable, a
Wireless Comniuni tions Fq ility Permit in accordance with Section 6.10.070 or Section
6.10.075 of this chabtikanclitiiv ministerial permit required by this code.
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2. In addition`'to the information required by this code in connection with an
application for a ministerial permit or a Wireless Communications Facility Permit, a telephone
corporation must submit to the City the following supplemental information:
a. A copy of the certificate of public convenience and necessity-issued by
the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to
provide the communications service for which the facilities are proposed to be constructed in the
public rights-of-way. Any applicant that, prior to 1996, provided communications service under
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Ordinance No. 1673
administratively equivalent documentation issued by the CPUC may submit copies of that
documentation in lieu of a certificate of public convenience and necessity.
b. If the applicant has obtained from the CPUC a certificate of public
convenience and necessity to operate as a "competitive local carrier," the following additional
requirements are applicable:
(1) As required by Decision No. 95-12-057.pf the CPUC, the applicant
must establish that it has timely filed with the city a quarterly repot hat describes the type of
construction and the location of each construction project propos,etto be undertaken in the city
during the calendar quarter in which the application is filed, ,#.6.i at the city can coordinate
multiple projects, as may be necessary.
(2) If the applicant's proposed construction project will extend beyond
the utility rights-of-way into undisturbed areas or oche` rights-of-way, the applicant must
establish that it has filed a petition with the CPUC toaend its certificate of pubic convenience
and necessity and that the proposed construction;>project has:.been subjected to a full-scale
environmental analysis by the CPUC, as required,,bj Decision.:; Jtr' 95-12-057 of the CPUC.
(3) The applicant must Iii#0 r>I`%the city whether its proposed
construction project will be subject to any of the mitigation measures specified in the Negative
Declaration ["Competitive Local Carriers:.,(CLCs) Projects fo < Qpal Exchange Communication
Service throughout California"] or to thelil:Miii4009 .y.onitoring'POti adopted in connection with
Decision No. 95-12-057 of the CPUC. <Ttle ''City's:: € tn:pe of a ministerial permit, and/or
Wireless Communications Facility Permit wjl] be cojOitioned ,upon the applicant's compliance
with applicable mitigation measures and motorist requirements imposed by the CPUC upon
telephone corporations that are designated as gprripetitive local carriers.
C. The city reserves all:n hts that t.now possesses or may later acquire with respect to the
regulation of any cable or t 3mmunicattons service that is provided, or proposed to be provided,
by a telephone corporation. These,:rese ,re€d„rights may relate, without limitation, to the
imposition of reasonable:; ndition 'addo to or different from those set forth in this section,
the exaction of a fee or oth ( ltNoii!of consideration or compensation for use of public rights-of-
way, and related matters; provided;, however, that such regulatory rights and authority must be
consistent with f0:044 d state law„ that is applicable to cable or communications services
provided by telephone carations."
SECTION 3. Section '6.;1:0.070 (Use of Public Rights-of-Way) of Chapter 6.10 (Cable,
Video and'C mmunications) of hIe 6 (Franchises) is hereby deleted in its entirety.
SECTION d ' :A new; ction 6.10.070 (Wireless Communications Facilities in the Public
Rights-of-Way) is hereby added to Chapter 6.10 (Cable, Video and Communications) of Title 6
(Franchises) as set forth'<tnexhibit "A" to this Ordinance, which is hereby incorporated as though
set forth in full herein.
SECTION 5. A new Section 6.10.075 (Wireless Communications Facilities in the Public
Rights-of-Way -- Eligible Facilities Requests) is hereby added to Chapter 6.10 (Cable, Video
and Communications) of Title 6 (Franchises) as set forth in Exhibit "B" to this Ordinance, which
is hereby incorporated as though set forth in full herein.
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Ordinance No. 1673
SECTION 6. The City recognizes its responsibilities under the Federal
Telecommunications Act of 1996, 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. Section 1455(a)
(the "Spectrum Act"), as may be amended, and all implementing federal regulations, FCC
rulings and orders, and state law, regulations and orders (collectively "Governing Laws"), and
believes that it is acting consistent with the current state of the Governing Laws in ensuring that
irreversible development activity does not occur that would harm the public health, safety, or
welfare. The City does not intend that this Ordinance prohibit or result:;in an effective prohibition
of wireless telecommunications services in the public rights-ot:i ay; but rather includes
appropriate reasonable time, place and manner regulations tonsure that the installation,
augmentation and relocation of wireless telecommunications favi€ities in the public rights-of-way
are conducted in such a manner so as to lawfully balance the''legal rights of applicants under
the Governing Laws while, at the same time, ensuring tat` the deployment of
telecommunications services will not incommode the public use of the C€ ' .rights-of-way, and
will protect to the full extent feasible against the safety,and land use concerns! escribed herein,
while treating all entities in an equivalent manner.
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SECTION 7. CEQA Findings. The proposed Ordinance does not constitute a "project"
within the meaning of the California Environmental:;'!;QuaLit Act of 1970 (CEQA) Guidelines
Section 15060(c)(2) because there is no potential that it will result in a direct or reasonably
foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378
because it has no potential for either...., :,direct physical '' n9e to the environment, or a
reasonably foreseeable indirect physical: ha gin the environment. Moreover, even if the
proposed Ordinance comprises a project Cl=`OA 'is;,it.falls within the "common sense"
CEQA exemption set forth in CEQA Guidelines Seectien`15061'(b)(3), excluding projects where
"it can be seen with certainty that there is nOpps4.10iity that the activity in question may have a
significant effect on the environment." Adoption `of this Ordinance will also enact only minor
changes in land use regulations, ate!tt.oan be seen with certainty that its adoption will not have
a significant effect on the en ironmen€:'because it will not allow for the development of any new
or expanded wireless telecommunication facilities'''anywhere other than where they were
previously allowed under existing federal.state`and local regulations. It is therefore not subject
to the environmental review;;pursuant to CEQA Guidelines Section 15305, minor alterations to
land use
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SECTIONS. ngs Clause;. Neither the adoption of this Ordinance nor the repeal or
amendment by iris Ordinance;of any ordinance or part or portion of any ordinance previously in
effect in theiii 'ity, or within tle::.territory comprising the City, shall in any manner affect the
prosecuti for the violation :;;any ordinance, which violation was committed prior to the
effective date of,this Ordinance nor be construed as a waiver of any license, fee or penalty or
the penal provisions applicabl b any violation of such ordinances.
SECTION 9. ''Severability. If any sentence, clause, or phrase of this Ordinance is for
any reason held to be 'Unconstitutional or otherwise invalid, such decision shall not affect the
validity of the remaining provisions of this Ordinance. The City Council hereby declares that it
would have passed this Ordinance and each sentence, clause or phrase thereof irrespective of
the fact that any one or more sentence, clauses or phrases be declared unconstitutional or
otherwise invalid.
SECTION 10. Certification. The City Clerk shall certify to the passage and adoption of
this Ordinance and shall cause this Ordinance to be published within 15 days after its passage,
in accordance with Section 36933 of the Government Code.
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Ordinance No. 1673
SECTION 11. Effective Date. This Ordinance shall go into effect on the 31st day after
its passage.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach
at a meeting thereof held on the day of , 2018.
Mike Varipapa, Mayor
ATTEST:
Robin L. Roberts, MMC, City Clerk CraigA. Steele, City Attorney
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss
CITY OF SEAL BEACH }
I, Robin Roberts, City Clerk of the City CitYagef4401mBp0ph, do hereby certify that the foregoing
ordinance was introduced for first read . of `°a<:irgJl„ eeting held on the day of
2018, was read aloud and appy rfed at 4t gialat`lfi eeting held on
2018, and was passed, approved and adoptedby; e City Council of the City of Seal Beach at a
regular meeting held on , 2018: y'fhe following vote:
AYES: Council Memt (s)
NOES:Council Member S
ABSENT: Council Merrm 0.i
ABSTAIN: Gouncil;Member(s)'qii::::].:„...
and do hereby further certifyfhat Ordinance Number 1673 has been published pursuant to
the Seal Beach City Charter and Resolution Number 2836.
Robin L. Roberts;'M , City;Clerk
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EXHIBIT "A"
CITY OF SEAL BEACH ORDINANCE NO. 1673
NEW SECTION 6.10.070 WIRELESS COMMUNICATIONS FACILITIES
IN THE PUBLIC RIGHTS-OF-WAY
"6.10.070 Wireless Communications Facilities in the Publiclaights-of-Way.
A. Purpose and Intent.
1. The purpose of this section is to provide aii0.tilform 440!!domprehensive set of
standards and procedures to regulate the location, placeT6ht, installation height, appearance,
and operation of wireless telecommunications ant9tiMis and related ••facilities ("wireless
communications facilities" or WCFs) in the PROW, qtistent with City laws, applicable state
and federal requirements, and changing technology. The regulations are intended to provide for
the appropriate development of wireless communications facilities within the PROW to meet the
needs of residents, business-owners, and visitors while protecting public health and safety and
preventing visual blight and degradation of the community's aesthetic character and scenic
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vistas.
2. The procedures set fortfigitl2this:. section ar6i:::jritended to permit wireless
communications facilities in the PROW list. blert&MtfpMekxisting surroundings and do not
negatively impact the environment, historic.. propOietPiiiiiii400hetics or public safety. The
procedures prescribed by this section are tailored,Wthe type of wireless communication facility
that is sought. Collocation of_facilities are-prerred and encouraged, subject to all other
provisions of this section. .::M:n!e••,,
•••••••
3. Due to rapidly changing kechnology4tid regulatory requirements, and to further
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implement this section, City Counctrpay: Oppt,rules and guidelines by resolution governing
WCFs in the PROW which maPintlikibtitaare not limited to, requirements related to
applications, notices, reviev41pfq .6dures, development and design standards, conditions, and
operation and maintenance req*pments. The Director may adopt policies, procedures and
forms consistent with Council-adopted rules and guidelines.
B. DefiqittOs.
For the purpose of this section, the following words and phrases have the
meanings set forth below. **cis and phrases not specifically defined in this section will
be given their marting ascribed to them in Section 6.10.010 or as otherwise provided in
Section 6409, the Communications Act, or any applicable federal or state law or
regulation..
Application: any written submission to the City for the installation, construction or other
deployment of a WCFP and related ministerial permits to obtain final approval of the deployment
of a WCF at a specified location.
Day: a calendar day, except as otherwise provided in this section.
Exhibit A - Page 1
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Ordinance No. 1673
Rules and guidelines: The rules, guidelines, regulations and procedures adopted from time to
time by resolution of the City Council to administer and implement this section.
C. Applicability
1. This section applies to the siting, construction or modification of any and all
WCFs located or proposed to be located within the PROW as follows:
a. All WCFs for which applications were not approved prior to the effective
date of this section shall be subject to and comply with all provisior*:Of this section.
b. All WCFs for which applications were apprbvmd and permits issued by the
City prior to the effective date of this section shall not be required to obtain a new or amended
WCFP until such time as this section so requires. If a WCF was lawfully constructed or installed
within the PROW in accordance with applicable local state or federal regulations prior to the
effective date of this section but does not comply withthe current standards, regulations and/or
requirements of this section, such WCF shall be dee €ed a legal nonconforming facility and shall
also be subject to the provisions of Section 6.10.Q.70.Y.
c. Any WCF proposed to be inst'Oec modified or otherwise deployed on
any existing utility structure (e.g., Southern California Edison or Southern California Gas
Company) in the PROW, except as otherwise required by state or federal pole attachments
rules, subject to submittal of documentationEstablishing the applicable exemption; and provided
further that such WCF shall comply with* `other to dards set forth in this chapter and the
rules and guidelines, and shall obtain anStite,lated #l3 is`te al>permit(s) (encroachment permit,
excavation permit, or building permit) required in order to access and/or use the PROW.
d. Any WCF rpgsed to be:installed, modified or replaced on any City
infrastructure located within;th PRO t including,jbut not limited to, any City-owned, leased or
licensed pole, tower, base.,station, cabinet structure building, or facility of any kind. The City
and an applicant may enter into a license; lease or Other agreement in a form acceptable to the
City, which includes, but'* not limited Jidjited•fdy'lenliS relating to rent, inspection, operations and
maintenance requirements-,defense and indemnification, insurance requirements, waiver of
monetary damages against tib :City, removal, restoration and clean-up requirements, and
requirement for,;pt ;tt of anyssessory interest taxes. Any such agreement shall not
substitute for arty permit req ired by th is.section or any other provision of this code.
e. All WC notwithstanding the date approved, shall be subject
immediately tts,;the provisions Of ithis section governing operation and maintenance standards
(Section 6.10070-„Q), radio frequency emissions and other monitoring requirements (Section
6.10.070.P), the <phibition<pf dangerous conditions or obstructions (Section 6.10.070.Q),
cessation of use and;abandonment (Section 6.10.070.S), revocation or modification; removal
(Section 6.10.070.T), et.on other ordinances (Section 6.10.070.V), and state or federal law
(Section 6.10.070.W), and the rules and guidelines adopted by resolution of the City Council. In
the event a condition of approval conflicts with a provision of this section, the condition of
approval shall control until the permit is amended or revoked.
2. Exemptions. This section does not apply to the following WCFs:
a. A WCF that qualifies as an amateur station as defined by the FCC, 47
C.F.R. Part 97, of the FCC's Rules, or its successor regulation.
Exhibit A - Page 2
Draft 11-13-18
Ordinance No. 1673
b. Any antenna facility that is subject to the FCC Over-The-Air-Receiving
Devices rule, 47 C.F.R. Section 1.4000, or its successor regulation, including, but not limited to,
direct-to-home satellite dishes that are less than one meter in diameter, TV antennas used to
receive television broadcast signals and wireless cable antennas.
c. Portable radios and devices including, but not limited to, hand-held,
vehicular, or other portable receivers, transmitters or transceivers, cellular phones, CB radios,
emergency services radio, and other similar portable devices as determined by the director.
d. Any WCF owned, leased and/or operated:;=by the City or any other
governmental agency.
e. Emergency medical care provider-owned and operated WCFs.
f. Mobile services providing public information coverage ofnews events of a
temporary nature.
g. Any other WCF exempted: m this code by federal law or state law,
subject to submittal of documentation establishinTthemppliciable exemption.
h. Any WCF proposed to be installedtlaced, modified or replaced on any
City-owned or controlled infrastructure located outside the' 'ROW, including but not limited to,
any City-owned, leased or licensed stret (gttraffic lightps, wires, fiber-optic strands,
conduit, and any other City-owned or ooritro#lit ;;poles, towers, base stations, cabinets,
structures, buildings, or facility of any kind located outside thO PROW. Such WCFs shall require
a license, lease or other agreement in the fd‘pndilerms required by the City from time to time,
which shall include, but not be limited to, term relating to permit requirements, rent, inspection,
operations and maintenan.Ce. ,:requirements;:;:;:;;defense and indemnification, insurance
requirements, waiver of monetary damages agaittshthe City, removal, restoration and clean-up
requirements, and requirement for payment of any possessory interest taxes; and any and all
other permits required by this code 4ny such agreement shall be in addition to, and shall not
mit
substitute for, any perrequired .?, ny provision of this code.
4.07
Any1/Vosed to be installed, construed, modified, or replaced on
'pP
any private property;::::< e.Chapt ''1 1,4.070)
Request ,for approval pursuant to Section 6409. Any requests for
approval t.dpeellocate, replace gar remove transmission equipment at an existing wireless tower
or base sta€li submitted pursont to Section 6409 will require an Eligible Facility Permit under
Section 6.10 07of this chapter_<'
D. General Wirdie4s,c.00trriunications Facility Permit Requirements.
1. Permit required. A WCF shall not be constructed, installed, modified, or replaced
in the PROW except upon approval of a SWFP or AWCFP in accordance with the requirements
of this section, or an EFP in accordance with the requirements of Section 6.10.075, and all
related ministerial permits.
2. Conflicting provisions. An application for a WCFP shall be processed in
compliance with this section and the rules and guidelines adopted by resolution of the City
Council. Ministerial permits shall meet all requirements of this section and all other applicable
Exhibit A - Page 3
Draft 11-13-18
Ordinance No. 1673
provisions of this code. In the event of any conflict between the provisions of this section and
any other provision of this code or the rules and guidelines, the provisions of this section shall
govern and control.
3. Permit type. Table 6.10.070.D identifies the type of permit required for each
WCF and the approval authority.
TABLE 6.10.070.D
Public Rights-of-Way Wireless Communications•Pacilities
Required Permit Matrix
TYPE OF FACILITY TYPE OF PERMIT :»:. APPROVAL
AUTHORITY
Small Wireless Facility (as defined Small Wireless F lity Permit Pb1ic.Works Director
in Section 6.10.010) (SWFP)1 or designee2
Eligible Facility (as defined in Eligible Facil 'Permit (E P)3 Public Works Director
Section 6.10.010 and 6.10.075.6) or designee2
Deployment of a new WCF other AdministratiWi.reles Public Works Director
than a Small Wireless Facility or Communicatiori = Oiity Permit or designee2
Eligible Facility; (AWCFP)4
Or
Replacement of, collocation on or
modification of an existing WCF "'olr +
other than a Small Wireless Facility.„,
or Eligible Facility .
(as defined in Section 6.10.0.4:D.5)
Appeal from Director decisi ;:IMWP, EFPAWCFP or other City Councils
.;> 'or..determinations.
Minor modification4 .„„oiiiP"' .0ver-theLbounter5 Public Works Director
or designee
Encroachment or excavation wit ;; Encroachment Permit, Excavation Public Works Director
or on public right ' '':::::::Permit and/or Building Permit' or designee
'For small;wW&ess facility:€;)requests and'permit procedures, see Section 6.10.070.D.4.
2Subjectilipl public notice and review by the Director. See Section 6.10.070.F.
3 For eligible facuiity requests and procedures. see Section 6.10.075 of this chapter.
4 For administrative i Pgi.essfacility permit procedures, see Section 6.10.070.D.S.
'Noticed public hearing before City Council required. See SBMC Section 6.10.070.F.3 and F.4.
6See SBMC Section 6.10.070.D.7.
' For encroachment permits, see SBMC Sections 7.35.010.B.6 and 9.50.025; for excavation permits,
see SBMC Chapter 9.15; and for building permits, see SBMC Chapter 9.60.
Exhibit A - Page 4
Draft 11-13-18
I
Ordinance No. 1673
4. Small Wireless Facility Permit (SWFP). An SWFP, subject to the City's
determination of compliance with the applicable requirements of this section and the rules and
guidelines , may be issued by the Director or his or her designee following public notice and
review under any of the following circumstances:
a. The application is for installation of a new small wireless facility, or the
replacement of, or collocations on or modifications to an existing small wireless facility, within
the PROW that meets all of the following criteria:
(i) The proposal complies with all appliCi iie provisions in this section
without need for an exception pursuant to Section 6.10.070.J; and
(ii) The proposal does not include any power generators; and
(iii) The proposal is not located in any prohibited location identified in
Section 6.10.070.G.4 or Section 6.10.070.K; or
b. The application is for a subsequent :collocation to be located on an
existing legally established small wireless commun1 tions,;g ltocation facility within the PROW
provided that all of the following conditions are
(i) The existing collocation facifit ;was approved after January 1,
2007 by discretionary permit; and
(ii) The existing ollocatio 'fac y:'was approved subject to an
environmental impact report, negative declara €on,,Oiirmitigated negative declaration; and
(iii) The :ex+sting collocation facility otherwise complies with the
requirements of Government Code Section 6585th 6(b), for wireless communication collocation
facilities or its successor provision, for addition:::of a collocation facility to a wireless
communication collocati.ou:facility, ir.044j ::b not'limited to, compliance with all performance
and maintenance requirements, regulabo is artd standards in this section and the conditions of
approval in the wireless dbforiwrOfibns collocation facility permit;
{»} ProvIt d„ however, only those collocations that were specifically
considered when the relevant:environmental document was prepared are permitted uses;
(v) TIe collocated facility does not increase the height or location of
the existing permitted tower/st pture, or otherwise change the bulk, size, or other physical
attributes of theexisting permitted small wireless facility; and
ilei ;,:,;.:.Before collocation, the applicant seeking collocation shall obtain
all other applicable nor=d#S `etionary permit(s), as required pursuant to this code.
c. The application shall meet the requirements of Section 6.10.070.E and
the rules and regulations. The Director shall review the application, pertinent information and
documentation and public comments in accordance with Section 6.10.070.F. An application for
a SWFP shall be approved if the Director makes all of the findings required by Section
6.10.070.1 of this chapter. The Director's decision shall be issued in writing in accordance with
the procedures set forth in Section 6.10.070.F and the rules and guidelines. The Director may
Exhibit A - Page 5
Draft 11-13-18
Ordinance No. 1673
impose additional conditions on the permit relating to time, place and manner pursuant to
Section 6.10.070.H.
5. Administrative Wireless Communications Facility Permit (AWCFP). An AWCFP,
subject to the City's determination of compliance with the applicable requirements and findings
of this section and the rules and guidelines, may be issued by the Director or his or her
designee under any of the following circumstances:
a. The application is for an AWCFP for deployment of a new WCF, or the
replacement of, or collocations on or modifications to an existing WCF, other than a small
wireless facility or an eligible facility, within the PROW that meets allof the following criteria:
(i) The proposal complies with all applicable provisions in this section
without need for an exception pursuant to Section 6.10 07Q.J and
(ii) The proposal does not iatpde any power generator's; and
(iii) The proposal is not located in any prohibited location identified in
Section 6.10.070.G.4 or Section 6.10.070.K; or
b. The application is for a subsequent„ collocation to be located on an
existing legally established wireless communications collocation facility within the PROW other
than a small wireless facility or eligible::fa i 1 prpvided that*WO the following conditions are
met:
(i) The existing deglocat#i7 facility .was approved after January 1,
2007 by discretionary permit;
(ii) ;; he existing collocation facility was approved subject to an
environmental impact report,;negative declaration, orniitigated negative declaration;
(iii)b: The . ting eotti ation facility otherwise complies with the
requirements of Government:Code'Section 65850.6(b), for wireless communication collocation
facilities or its successor -psion, for addition of a collocation facility to a wireless
communication co i c...t pn,facil ty� ncl,uding, but not limited to, compliance with all performance
and maintenance regUiret' nts, regulations and standards in this section and the conditions of
approval in the wireless cor1trppications collocation facility permit;
(iv) FtVided, however, only those collocations that were specifically
considered whet ,the relevant Onvironmental document was prepared are permitted uses;
:(v) The collocated facility does not increase the height or location of
the existing permitted' touter/structure, or otherwise change the bulk, size, or other physical
attributes of the existing permitted WCF; and
(vi) Before collocation, the applicant seeking collocation shall obtain
all other applicable ministerial permits, as required pursuant to this code.
c. The application is for a temporary wireless communications facility that
meets all of the requirements of this section.
I
Exhibit A - Page 6
Draft 11-13-18
Ordinance No. 1673
6. City Council Approval Authority. The following applications shall require approval
of a SMFP or AWCFP by the City Council at a noticed public hearing.
a. Any application for a WCFP that includes a power generator.
b. The Director may, in his/her discretion, refer any other application for a
SWFP or an AWCFP to the City Council for their review and decision at a noticed public
hearing.
c. The noticed public hearing shall be conduced in accordance with the
procedures set forth in Section 6.10.070.F.
7. Minor modifications. Minor modifications: to an fisting WCF, including
replacement with the in-kind, number size or with smaller.or less visibleequipment, that (a)
meet the standards set forth in this section, (b) will . ve little or no change in the visual
appearance of the WCF, and (c) do not increase the,f„ F output of the WCF, are considered to
be routine maintenance and repairs, and may be a# proved as,an over-the-counter permit, and
without any noticed public hearing, subject to apprOal of any Ot er required ministerial permits.
The upgrade or any other replacement of existing::facilitiesatid all new antennas, structures,
and other facilities shall comply with the SWFP, AVtl FPs EFP requirements of this chapter
and the rules and guidelines.
8. Eligible facilities. Unless:::specifically exemptN:Vp federal or state law, any
application for the installation or modification of'a.:; CF::th,at constitutes an "eligible facilities
request" within the meaning of Section 640g shall;r quiti tt approval of an Eligible Facility
Permit (EFP) by the Director in accordance with Section 6.10.075 of this chapter and the rules
and guidelines prior to deployment of the eligiblefacility.
9. Other permitsarequired ';tn addition tr :any permit that may be required under this
section, the applicant must,obtain all mer required prior permits or other approvals from other
City departments, or stat or federal: €0.00.A ::A.Ay`WCFP granted under this section shall also
be subject to the conditi and/or; quii'errrent ''of all such other required City, state or federal
prior permits or other apprigls>. ''
10. EI.Egille applicants.? € nl.y applicants who have been granted the right to enter the
PROW pursuepto state•!?0;,.federal law, or who have entered into a franchise or license
agreement withthe City perry# ting themto use the PROW, shall be eligible to construct, install,
modify or otherwise deploy a VF in the PROW.
11. '' eeculative equipment or facilities prohibited. The City finds that the practice of
"pre-approving'` wiriess communications equipment or other improvements that the applicant
does not presentlytntencl,At 'install but may wish to install at some undetermined future time
does not serve the public 'best interest. The City shall not approve any equipment or other
improvements in connection with a WCFP when the applicant does not actually and presently
intend to install such equipment or construct such improvements.
12. Prohibited facilities. Any WCF that does not comply with the most current
regulatory and operational standards and regulations (including, but not limited to RF emission
standards) adopted by the FCC is prohibited.
Exhibit A - Page 7
Draft 11-13-18
Ordinance No. 1673
E. Application Procedures. An application for a WCFP shall be filed and reviewed in
accordance with the following provisions and the rules and guidelines , except as otherwise
provided for eligible facilities in Section 6.10.075 (Wireless Communications Facilities in the
Public Rights-of-Way: Eligible Facilities).
1. Complete application required. The applicant shall submit a WCFP application in
writing to the Public Works Department on a City-approved form as prescribed by the Director,
and shall submit all information, materials and documentation required by this section and the
rules and guidelines or as otherwise determined to be necessary by the Director to effectuate
the purpose and intent of this section. The Director may waive certain submittal requirements or
require additional information based on specific project factors.:: < Iriless an exemption or waiver
applies, all applications shall include all of the forms, informal #ti;ft`t erials and documentation
required by the City. An application shall not be deemOtt complete: y.;:the City unless the
completed City application form and all required information,'materials and;:;documentation have
been submitted to the City. An application which. dbes not include atl,<required forms,
information, materials and documentation shall bej ,deemed incomplete, and a notice of
incomplete application shall be provided to the.%applicant in accordance with Section
6.10.070.E.6.
2. Application fees. Concurrent with subrTOOP.Orf the application, the applicant shall
pay an application fee and processing fee, a deposit foran: dependent expert review as set
forth in this section, and a deposit for review by the City Attoo> 'ey's office, in a payment format
accepted by the City Finance Department and`t ;amounts set by resolution of the City Council.
The amounts of such fees shall be fair and af*reaSotitI*COOrfjpgnsation for the applicant's use of
the PROW, and shall be competitively neutral and nondiscr( tinatory. Fees shall not exceed
any maximum fees set by federal or state lir except to the extent that such fees are (a) a
reasonable approximation of costs„ (b) those Cot themselves are reasonable, and (c) are non-
discriminatory. Failure to pay the fees in full at'the time of application submittal shall result in
the City deeming the application incomplete.
3. VoluntaryPre-submittal`Crtfren > Prior to application submittal, the applicant
may schedule and attend; a v:,okintary pre submittal conference with the Public Works
Department and Community . velopment Department staff for all proposed WCFs in the
.:::::::... .
PROW, including all new or repIament WCFs, and all proposed collocations or modifications
to any existing,:WC The purpose of the pre-submittal conference is to provide informal
feedback on,„the. propose assificat , review procedure, location, design and application
materials, tc €:identify potentialoncerns and to streamline the formal application review process
after submittal. Participation ra sa voluntary pre-submittal conference shall not commence the
shot clock ntitine for review) requirements under Section 6.10.070.E.6 of this chapter.
4. AppoiNmentaRiThe Director may require that an application shall be submitted
only at a pre-arrangedapintment in accordance with the rules and guidelines. The Director
has the discretion to set'<the frequency and number of appointments that will be granted each
day. The requirement for an appointment shall be published on the Department's website.
5. Independent expert. The Director is authorized to retain on behalf of the City an
independent, qualified consultant to review any application for a WCFP to review the technical
aspects of the application, including but not limited to: the accuracy, adequacy, and
completeness of submissions; compliance with applicable radio frequency emission standards;
whether any requested exception is necessary; technical demonstration of the facility designs or
configurations, technical feasibility; coverage analysis; the validity of conclusions reached or
Exhibit A - Page 8
Draft 11-13-18
Ordinance No. 1673
claims made by applicant; and other factors deemed appropriate by the Director to effectuate
the purposes of this section. The cost of this review shall be paid by the applicant through a
deposit pursuant to an adopted fee schedule resolution.
6. Shot Clocks: Timeline for review and action. The timeline for review of and
action on a WCF application shall begin to run when the application is submitted in writing to the
Department but may be reset or tolled by mutual agreement or upon the City's issuance of a
notice of incomplete application to the applicant pursuant to Subsection E.7 of this Section.
Applications shall be processed in conformance with the tir U periods and procedures
established by applicable state and federal law, and FCC regulations and orders. The following
provisions shall apply:
a. Small Wireless Facilities Request ::Fqr review revieNWO an application for a
SWFP, the City shall act upon the application in accordance with the following timing
requirements.
(i) 60 days -- For an application to collocate a Small Wireless Facility
using an existing structure, the City will act upon the'application"within sixty (60) days from the
Department's receipt of the written application paoket, unless<'the time period is re-set or tolled
by mutual agreement or pursuant to Section 6.10.070.E 7
(ii) 90 days -- For an application'to employ a Small Wireless Facility
using a new structure, the City will act pon the:application *Min ninety (90) days from the
Department's receipt of the written application p d:0 1 n1e sthe time period is re-set or tolled
by mutual written agreement or pursuant to' ction 61O7O7.
b. Eligible Facilities Request For an eligible facilities request, the City will
act on the application within six _Odays of the Department's receipt of the written application
packet, unless the time period is 6lle0 by mutual>written agreement or pursuant to Section
6.10.075.E.6 of this chapter;:;
c. AH ther WC ..ret`lut ts. tror all other applications that do not qualify as a
small wireless facility or ari l` ibL facility, the City will act upon the application in accordance
with the following timing requiivts:
>:90 days :for an application to collocate a facility on an existing
structure, other than a Small Wireless Facility or an Eligible Facility, the City will act on the
application within ninety (90) days of the Department's receipt of the application packet unless
the time pan :;is tolled by mutaiiiwritten agreement or pursuant to Section 6.10.070.E.7.
(ii) 150 days -- For an application to deploy a facility using a new
structure, other than ;:a $mall Wireless Facility or Eligible Facility, the City will act on the
application within one-h € Ired fifty (150) days of the Department's receipt of the application
packet, unless tolled by mutual written agreement or pursuant to Section 6.10.070.E.7.
d. Batching. An applicant may submit a single application for authorization
of multiple deployments of WCFs pursuant to this section. An application containing multiple
deployments shall comply with the following timing requirements.
(i) The deadline for the City to act upon the application shall be that
for a single deployment within that category,
Exhibit A - Page 9
Draft 11-13-18
Ordinance No. 1673
(ii) 90 days: If a single application seeks authorization for multiple
deployments of small wireless facilities, the components of which are a mix of deployments that
fall within Section 6.10.070.E.6.a.i and deployments that fall within Section 6.10.070.E.6.a.ii,
then the City shall act upon the application as a whole within 90 days, unless tolled or reset by
mutual written agreement or pursuant to Section 6.10.070.E.7.
7. Resetting or Tolling of Shot Clock; Incomplete Application Notices. Unless a
written agreement between the City and the applicant provides otherwise, in the event that
Department staff determines that a permit application is incomplete:because it does not contain
all the information, materials and/or other documentation requirlby this section, Department
staff may issue a notice of incomplete application to the applicaiiand the shot clocks set forth
above shall be re-set or tolled as set forth in this subsection.
a. First Incomplete Notice -- Small Wifeless Facility Resetting of Shot Clock.
Department staff shall determine whether an application for a SWF is cora p te:or incomplete
within ten (10) days of the City's receipt of the initial ,application and shall notify''the applicant in
writing if the application is materially incomplete. l e notice of incomplete application shall
identify the specific missing information, materials<rand/or doctjments, and the ordinance, rule,
statute or regulation creating the obligation to :submit ,:i000.-1 ch information, materials and/or
documents. The applicable shot clock date calculationAetiorth in Section 6.10.070.E.6.a.i or
6.10.070.E.6.a.ii shall re-start at zero on the date that the!' tplicant submits all the information,
materials and documents identified in the notice of incomplete application to render the
application complete.
b. First Incomplete Nottt; :;-- OtherWift46$%'Communication Facility; Tolling
of Shot Clock. Within thirty (30) days of the' ity's< ceipt of the initial application for any other
WCF (excluding an eligible facility; see Section 6. 10.075), Department staff shall determine
whether the application is completer incomplet :and shall notify the applicant in writing if the
application is materially inoPrn•pleteliiiiiiNhe notice of incomplete application shall identify the
specific missing informatiot`i and dooirnents, and::::::the ordinance, rule, statute or regulation
creating the obligation to.submit suchii tfat€tnor`documents. The applicable shot clock date
calculation set forth in 'Section 6 ll D7 i=:'6:c 'shall be tolled for the tolling period represented
by the number of days from tl eday after the City notifies the applicant in writing that the initial
..............
..............
application is materially incomplete until the date the applicant submits all documents and
information identified iia the3:;notic&of"#n.complete application necessary to render the application
complete.
c. Subsequent Incomplete Notices. For resubmitted applications following
the initial notice of incomplete application under Section 6.10.070.E.7.a or Section
6.10.070.E 7 b , :Department .sff will notify the applicant within ten (10) days of the City's
receipt of the resubmitted application whether the supplemental submission is complete or
incomplete, If the supplemental submission was incomplete, the notice shall specifically identify
................
...............
the missing informatior ;ii>Iaterials, and/or documents that must be submitted based on the
Department's initial incomplete notice. In the case of any such subsequent notices of
incomplete application, the applicable timeframe for review set forth in Section 6.10.070.E.6.a or
Section 6.10.070.E.6.c shall be tolled from the day after the date the City issues the second or
subsequent notice of incomplete application to the applicant until the applicant submits all the
information, materials and documents identified by the City to render the application complete.
Exhibit A - Page 10
Draft 11-13-18
Ordinance No. 1673
d. One Submittal. The applicant's response and submission of
supplemental materials and information in response to a notice of incomplete application must
be given to the City in one submittal packet.
e. Determination of shot clock date.
(i) The shot clock date for a WCF application is determined by
counting forward, beginning on the day after the date when the application was submitted, by
the number of days of the shot clock period identified pursuant tQSection 6.10.070.E.6.a or
6.10.070.E.6.c. and including any pre-application period asserte:dby the City; provided, that if
the date calculated in this manner is a holiday, the shot clock dat t&the next business day after
such date.
Arlilhi::
(ii) For purposes of this Subparagraph (e), the term "holiday" means
term "holiday" means any of the following: Saturday,,Sunday, any holidaysrecognized by the
City; and any other day recognized as a holiday by ttheFCC pursuant to any applicable federal
regulations, orders or rulings of the FCC for the subjeot'WCFP.
(iii) For purposes of this ."�.'�'iJ_#para. raph (e), the term ""business day"
means any day that is not a holiday, as defined in Subjt;'agiaph (iii).
8. Withdrawal; extensions of time. To promote ecient review and timely decisions,
any application deemed incomplete mus iip. rest omitted within one-hundred eighty (180) days
after issuance of any notification of irtorripleteQc ;the application shall be deemed
automatically withdrawn. Following the applicant's 40.14licant)er6queitilhe Director may in his or her
discretion grant a one-time extension in processing proC4i*Viiitj4te to resubmit, not to exceed 150 days. If
the application is deemed automatically witch raven (and any applicable extension period, if
granted, has expired), a new;;a pl g tion (inclu it g, fees, plans, exhibits, and other materials)
shall be required in order to:>evmmertee: procesSititipf the project. No refunds will be provided
for withdrawn applications. : ''
Ew
9. Leases '> ieenses .eirid�`'agreements for CityInfrastructure or Property in the
9 P Y
PROW. The City and an'`a .p leapt may mutually agree to enter into a lease, license or other
.::.............
agreement for the applicant's'ligfllation, modification or other deployment of a WCF on any
City-owned infragilftta:or other's ity property within the PROW. The proposed agreement
may include multiple WC ; s mutually;.agreed upon. The agreement shall be in addition to,
and not a substitute for an ii rmit required by any provision of this code. An WCFP shall be
required forubsatl proposed facil'it€es.that are to be covered by an agreement between the City and
the applicant. The agreement $hall be fully executed by the City and applicant prior to the
applicant's submittal of any WFP application under this section or any other provision of this
code. In additioill;„ministeel permits shall be obtained as a condition of the installation,
construction or other' ep:dmnent of any proposed WCF within the PROW. The shot clock
provisions set forth in Senn 6.10.070.E shall not apply during any negotiations for any such
lease, license or other agreement. The shot clock provisions set forth in Section 6.10.070.E
shall commence upon the date of submittal of an application for a WCFP for specific wireless
communications facility(ies) following the effective date of the lease, license or other agreement.
F. Notice and Decision. Procedures for public notice, approval authority review of and
action on WCFP applications are set forth in this subsection and in the rules and guidelines.
Exhibit A - Page 11
Draft 11-13-18
Ordinance No. 1673
1. Public notice of application. Upon submittal of a complete SWFP or AWCFP
application to the City, the applicant shall send the City-approved public notice of the application
to all businesses and residents within a 150-foot radius of the proposed WCF in accordance
with the rules and guidelines. Concurrently with service on the businesses and residents, the
applicant shall also send a copy of the approved public notice to the Department along with
proof of service of the public notice on all residents and businesses as required by this
subsection.
2. Public comment. Within ten (10) days from service;:¢fthe notice, any interested
person may submit comments on the proposed WCF to the Ci„tsillitt U.S. Mail or through the
City's website. Any timely public comments received will be G6Sidered during the Director's
review of the application.
'MAIL
3. Director action on SWFP and AWCFP a lcations. "``
a. Director review, decision andeotice. Upon receipt",of a complete
application for a SWFP or an AWCFP pursuant t?iiiipils section..the Director shall review the
application and all pertinent information, materials document lon and public comments. The
Director's decision shall be based on substantial efdence.<:ithe written administrative record.
The Director may approve, or conditionally approve a € ltcation for a SWFP or AWCFP only
after the Director makes all of the findings required irilegign 6.10.070.1. The Director may
impose conditions in accordance with Section 6.10.070.H: fithin five days after the Director
approves or conditionally approves an apilaion:::.under this scion, the Director shall issue a
written determination letter, and shall serv !,a copy of the determination letter on the applicant at
the address shown in the application and shalt cause 'te detert'riination letter to be published on
the City's website.
b. Conditional approvals. Subject to any applicable limitations in federal or
state law, and in addition to,the'standard conditk Sof approval required by Section 6.10.070.H,
nothing in this section is ii'tended to'' limit the City's authority to conditionally approve an
application for a WCFP.to protect.1:1440i1Vpmplp' the public health, safety and welfare in
accordance with this secttgr and the rules arta gicielines.
c. Appeals 14 Director decisions.
appeal. Any interested person or entity may appeal
the Director's::;decision to the': ity Council within ten (10) days after the determination letter has
been served. on the applicant acid published on the City's website in accordance with Section
6.10.070.G:30:
(ii) Content of appeal. The appeal shall set forth the reasons therefor
and shall be accompanied by the appeal fee and deposit fee set from time to time by resolution
of the City Council. AOISection 332(c)(7) of the Telecommunications Act preempts local
decisions premised directly or indirectly on the environmental effects of radio frequency (RF)
emissions, appeals to the Director's decision premised on the environmental effects of radio
frequency emissions will not be considered.
(iii) Notice. Notice of the appeal hearing shall be provided to all
persons and businesses within a 150-foot radius of the proposed WCF site or location.
Exhibit A - Page 12
Draft 11-13-18
Ordinance No. 1673
(iv) Appeal hearing. The City Council shall hear such appeals at the
next available regular meeting that occurs not less than ten nor more than 30 City days after the
filing of the appeal, if reasonably feasible; and provided further that the City Council's decision
shall be issued no later than the applicable shot clock set forth in Section 6.10.070.E.6. except
as otherwise tolled by mutual agreement or pursuant to Section 6.10.070.E.7.
(v) Conduct of appeal. The City Council hearing on appeal shall be
de novo. In considering and deciding the appeal, the City Council shall apply the same criteria
and findings as the Director in considering the application. A written decision shall be issued by
the City Council in accordance with Section 6.10.070.G.4.e.
4. City Council decision on SWFP or AWCFP app'cati ns. Any application for a
WCFP pursuant to Section 6.10.070.D.6 shall require a noticed pubfii ' earing before the City
Council in accordance with the following requirements.
a. Hearing date. The hearing date shall be set for not less than ten nor
more than 60 days after the application is verified a "iomplete,.and shall be scheduled so as to
enable the City to meet the applicable shot clock set forth i Section 6.10.070.E.6 except as
otherwise tolled by mutual agreement or pursuant' .ction$ 10.070.E.7.
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b. Notice of hearing. Notice of hearing:shall be provided by the City and
shall contain the name and place of the., hearing and othCrtinent data presented in the
application or appeal. Notice shall be mailed by the;City not Ie <than ten days before the date
set for the hearing to all property ownera''of.reCittet*tgkOpOing occupants within a 150-foot
radius of the proposed WCF location or site describ.:.:. rn'the pplication.
c. City Council decision. 'ilf"fe:"'City Council may approve, or conditionally
approve, a SWFP or AWCFP apptiiation only after it makes all of the findings required in
Section 6.10.070.1.
d. Wit ty decision ppciuired `The City Council's decision shall be by
resolution and shall be ibae:d on substantial evidence in the written administrative record. The
written decision shall include h 'reasons for the decision. The City Council's decision on
appeal shall be final and not subject to any further administrative review in the City.
G. Design and Deve 3 :ent Standards. In order to ensure compatibility with surrounding
land uses, protect public safety and natural, cultural, and scenic resources, preserve and
enhance the character of re; ential neighborhoods and promote attractive nonresidential
areas, in addition to all other applicable requirements of this code, all WCFs in the PROW shall
be located, dev loped, and opetated in compliance with the following standards set forth in this
subsection and iii. e:::rules andguidelines, unless the Director approves an exception subject to
the findings requiredl� 3 SS,ubsection J: Exceptions.
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1. General requirements. All WCFs that are located within the PROW shall be
designed and maintained as to minimize visual clutter, and reduce noise and other impacts on
and conflicts with the surrounding community in accordance with the code and rules and
guidelines.
2. Traffic safety. All WCFs shall be designed and located in such a manner as to
avoid adverse impacts on traffic safety, and shall comply with the most recent edition of the
Exhibit A - Page 13
Draft 11-13-18
Ordinance No. 1673
California Manual on Uniform Traffic Control Devices (MUTCD) and any other traffic control
rules, regulations or ordinances of the City.
3. Space occupied. Each WCF shall be designed to occupy the least amount of
space in the right-of-way that is technically feasible.
4. Location.
a. No WCF shall be located within six (6) feet a residential property. As
used herein, the term "residential property" means any property zoned for residential use under
Title 11 of the code, or any property on which is located a singlefmily or multi-family use. The
10-foot distance shall be measured from the property line of ''suet parcel or lot nearest to
the proposed WCF.
b. No WCF shall be located .:*thin the PROM* any poles,
infrastructure, buildings or other structures of arty kind in the PROWPC any of the
following locations:
(i) On the Seal Beach Pier;
(ii) On any decorative lighting t f,poles on Main Street from and
including Pacific Coast Highway to theSea.l. Beach Pier; or
(iii) On Electric Electric'AVenue'betWeditMarina to Ocean.
c. Each component part of a WCF shall be located so as not to cause any
physical or visual obstruction to:; destrian or vehicular traffic, inconvenience to the public's use
of the PROW, or safety hazards to destrians':arid motorists, or interference with any path of
travel or other disability access requirements imposed under federal or state law.
d. A:;WCF shall;:;not bC100 d'within any portion of the PROW interfering
with access to a fire hydt'ant, fire ;station, fire escape, water valve, underground vault, valve
housing structure, or any oftiOri0Oblic health and safety facility.
<1(I,ICFs''m o nted to a communications tower, above-ground accessory
equipment, orialls, fencesjandscapfng!'or other screening methods shall have and maintain a
minimum stick of 18 inchesfrom the front of a curb.
To conceal the non-antenna equipment, applicants shall install all non-
antenna equip'rne t (including,i t not limited to all cables) underground to the extent technically
n
feasible. If such ribantenna equipment is proposed in within an underground utility district and
the type of non-antenna equipment has been exempted by the City Council from
undergrounding pursuant`'itS. Section 9.55.015.6.6 of Chapter 9.55 of the code, the non-antenna
equipment shall comply with the requirements of this section if the Director finds that such
undergrounding is technically feasible and undergrounding is required for building, traffic,
emergency, disability access, or other safety requirements. Additional expense to install and
maintain an underground equipment enclosure does not exempt an applicant from this
requirement, except where the applicant demonstrates by clear and convincing evidence that
this requirement will effectively prohibit the provision of wireless communications services.
Exhibit A - Page 14
Draft 11-13-18
Ordinance No. 1673
5. Concealment or Stealth Elements. Stealth or concealment elements may include,
but are not limited to:
a. Radio frequency transparent screening;
b. Approved, specific colors;
c. Minimizing the size of the site;
d. Integrating the installation into existing utility : astructure;
e. Installing new infrastructure that matches*:0;00ng infrastructure in the
area surrounding the proposed site. The new infrastructure:41ien detkialed to the city and the
installation is integrated into the new infrastructure; and
f. Controlling the installation location pursuant to Subsection G.4 of this
section.
6. Collocation. The applicant and owner>.of an kite on which a WCF is located
shall cooperate and exercise good faith in collocating IGFs on the same support structures or
site. Good faith shall include sharing technical infbmttt tion to evaluate the feasibility of
collocation, and may include negotiations for erection of`a' Jacement support structure to
accommodate collocation. A competitive ccnflJct to collocataiiitp,financial burden caused by
sharing information normally will not be considered;as act::excuse to the duty of good faith.
a. All WCFs shall makeO:vailabte unused space for collocation of other
WCFs, including space for these entities proiie •similar, competing services. Collocation is
not required if the host facility..:40ittlemonstrate.iitot the addition of the new service or facilities
would impair existing service;:Or'causethe host ta`go,offline for a significant period of time. In the
event a dispute arises asto whethera permittee :has exercised good faith in accommodating
other users, the Director 'ay requee t <appli artt to obtain a third-party technical study at
applicant's expenseI e:.;pirectOiiii tay: ` vEew any information submitted by applicant and
permittee(s) in determining whether good faith has been exercised.
arid multiple-user WCFs shall be designed to promote
facility and sit `6•arirlg C mmur iatEon towers and necessary appurtenances, including but
not limited tgpflirking areas,mess roads, utilities and equipment buildings, shall be shared by
site users Whenever possible.`% ,
No colloA tion may be required where it can be shown that the shared
use would or d0 : cult in *ghiificant interference in the broadcast or reception capabilities of
the existing WCFs'o :hjre the existing facilities to meet federal standards for emissions.
d. When antennas are co-located, the Director may limit the number of
antennas with related equipment to be located at any one site by any provider to prevent
negative visual impacts.
e. Failure to comply with collocation requirements when feasible or
cooperate in good faith as provided for in this section is grounds for denial of a permit request or
revocation of an existing permit.
Exhibit A - Page 15
Draft 11-13-18
Ordinance No. 1673
7. Radio frequency standards; noise.
a. WCFs shall comply with federal standards for radio frequency (RF)
emissions and interference. No WCF or combination of facilities shall at any time produce
power densities that exceed the FCC's limits for electric and magnetic field strength and power
density for transmitters or operate in a manner that will degrade or interfere with existing
communications systems as stipulated by federal law. Failure to meet federal standards may
result in termination or modification of the permit.
b. WCFs and any related equipment, including backup generators and air
conditioning units, shall not generate continuous noise in excess0 decibels (dBa) measured
at the property line of any adjacent residential property, and shaft not generate continuous noise
in excess of 50 dBa during the hours of 7:00 a.m. to 10:00:;p . and 404qi:ow. during the hours of
10:00 p.m. to 7:00 a.m. measured at the property line of;.:any nonresidert( I:adjacent property.
Backup generators shall only be operated during:;:power outages arittiiiiifor testing and
maintenance purposes. Testing and maintenance sli1r only take place on weekdays between
the hours of 8:30 a.m. and 4:30 p.m.
8. Additional standards. Consistent viitderal € d state laws and regulations, the
City Council may further establish design and development standards pursuant to rules and
guidelines, including but not limited to, relating to antennas,, new, existing and replacement
poles, wind loads, obstructions, supporting structures screening, accessory equipment,
landscaping, signage, lighting, security aNifirgogydrAtion.
9. Modification. Consistent wilt„.s..tate and federal'#aws and regulations, at the time
of modification of a WCF, existing equipment she#l; to the extent feasible, be replaced with
equipment that reduces visual,,,. noise and ' itier impacts, including, but not limited to
undergrounding the equipment Arid ;replacing: larger, more visually intrusive facilities with
smaller, less visually intrusiv facilities.
H. Standard Condiflgns of Appt0.*akiiiiioNONCFP approvals, whether approved by the
approval authority or deemed approved'by the operation of law, shall be automatically subject to
the conditions in this subseCtitin;f addition to any conditions imposed by the approval authority
pursuant to this section and' #1<e::;:rules and guidelines. The approval authority shall have
discretion to modify or amend the4.0iiponditions on a case-by-case basis as may be necessary
or appropriate,,, nder the ; roumstarro : to protect public health and safety or allow for the
proper operation of the approved eligible facility consistent with the goals of this section.
1. >:;;: Permit term. In atordance with Section 6.10.070.R, a WCFP will automatically
expire ten yea ;and one day;from its issuance, unless it lapses or is revoked sooner in
accordance with thj5;code of any other provision of federal or state law, or in cases where
Government Code Ston::: :964(b), as may be amended, authorizes the City to issue a WCFP
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with a shorter term. Artythier permits or approvals issued in connection with any collocation,
modification or other change to the WCF, which includes without limitation any permits or other
approvals deemed-granted or deemed-approved under federal or state law, will not extend the
ten-year term limit unless expressly provided otherwise in such permit or approval or required
under federal or state law.
2. Strict compliance with approved plans. Any application filed by the permittee for
a ministerial permit to construct or install the WCF approved by a WCFP must incorporate the
WCFP approval, all conditions associated with the WCFP approval and the approved photo
Exhibit A - Page 16
Draft 11-13-18
Ordinance No. 1673
simulations into the project plans (the "approved plans"). The permittee must construct, install
and operate the WCF in strict compliance 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 WCF, must be
submitted in a written request subject to the Director's prior review and approval.
3. Build-out period. The WCFP approval will automatically expire one year from the
WCFP approval or deemed-granted date unless the permittee obtains all other permits and
approvals required to install, construct and/or operate the approved WCF, which include without
limitation any City ministerial permits, and any other permits:;or approvals required by any
federal, state or other local public agencies with jurisdictiorl;:`over. the subject property, the
eligible facility or its use. The Director may grant one written;extettsn to a date certain when
the permittee shows good cause to extend the limitations:period in a:.written request for an
extension submitted at least thirty (30) days prior to the automatic expiration date in this
condition.
4. Maintenance obligations — vandalisrrL The perm ttee shall keep the site, which
includes without limitation any and all improvements, equipment, structures, access routes,
fences and landscape features, in a neat, cleart,Ancl, safe>,condition in accordance with the
approved plans and all conditions in the WCFP. The permittee shall keep the site area free
from all litter and debris at all times. The permittee, at`t.'i cost to the city, shall remove and
remediate any graffiti or other vandalism at the site within 48_tours after the permittee receives
notice or otherwise becomes aware tha si ;graffiti, or other vat dalism occurred. Each year
after the permittee installs the WCF, the rtnittee'''shall €b it.;a written report to the Director, in
a form acceptable to the Director, that documents theth'en-current site condition.
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5. Property maintenance. The permittee shall ensure that all equipment and other
improvements to be construct s€>l nd/or instalteed;:.in connection with the approved plans are
maintained in a manner that'ts not"detrimental' r:.injurious to the public health, safety, and
general welfare and that the"aestheti appearances i8'continuously preserved, and substantially
the same as shown in the approved pans at alt times relevant to the WCFP. The permittee
further acknowledges that failure to maintari cots'pliance with this condition may result in a code
enforcement action.
6. 0000)(411- a 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
("Governing ; iws") applicakleto the permittee, the subject property, the WCF and any use or
activities if Connection with the:use authorized in the WCFP, which includes without limitation
any law.'—':'applicable to human exposure to RF emissions. The permittee expressly
acknowledges anct.agrees that alis obligation is intended to be broadly construed and that no
other specific regiments <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 Seal
Beach Municipal Code, any permit, any permit condition or any Governing Law, the applicant or
permittee will not be relieved from its obligation to comply in all respects with all applicable
provisions in the Code, any permit, any permit condition or any Governing Law.
7. Adverse impacts on other properties. The permittee shall use all reasonable
efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that
may arise from the permittee's or its authorized personnel's construction, installation, operation,
modification, maintenance, repair, removal and/or other activities at the site. Impacts of radio
Exhibit A - Page 17
Draft 11-13-18
Ordinance No. 1673
frequency emissions on the environment, to the extent that such emissions are compliant with
all Governing Laws, are not "adverse impacts" for the purposes of this condition. 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 hours authorized by the Code. The restricted work
hours in this condition will not prohibit any work required to prevent an actual, immediate harm
to property or persons, or any work during an emergency declared by the City. The Director or
the Director's designee may issue a stop work order for any activities that violate this condition.
8. Inspections — emergencies. The permittee expresslyacknowledges 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; provided, however,
that the City's officers, officials, staff or other designee may,:but will not be obligated to, enter
onto the site area without prior notice to support, repair, disable or remove an r improvements or
equipment in emergencies or when such improvements or equipment threatens actual,
imminent harm to property or persons. The permitte0.6 ill be permitted to supervise the City's
officers, officials, staff or other designee while any stlh inspection or emergency access occurs
to the extent not inconsistent with City requirements'
9. Permittee's contact information. The'permtfee shall furnish the Director with
accurate and up-to-date contact information for a person responsible for the WCF, which
includes without limitation such person's full name, title, `direct telephone number, facsimile
number, mailing address and email address.:., he permittee shalt keep such contact information
up-to-date at all times and immediately provide th'e't '8tr'pcwith updated contact information in
the event that either the responsible person ,:such,; rsons ntact information changes.
10. Insurance. The. permittee shaltii'obtain, pay for and maintain, in full force and
effect until the WCF approved approvediiiiWthe, permit '5'>;removed in its entirety from the PROW, an
insurance policy or policies,; public ft bility insurance which shall be in the form and substance
satisfactory to the City, ar 01all be maintained ur l'the term of the permit ended and the WCF
is removed from the PRON. The insurance;;hafl,comply with the minimum limits and coverages
and provisions set forth to the rules and gu`ide(fhes, and as otherwise established from time to
time by the City, and which fully protect the City from claims and suits for bodily injury, death,
and property damage.
11. l demnif'icason:;:..
a. The perMittee shall agree in writing to defend, indemnify, protect and hold
harmless '' ity ,.. its elected and iappointed officials, officers, boards, commissions, agents,
consultants, Errloyees, volunteers and independent contractors serving as City officials
(collectively "Indemnitees"), fron and against any and all claims, actions, or proceeding against
the Indemnitees or a yof.>th rri, to attack, set aside, void or annul, an approval of the Director or
City Council concerning tl€e' permit and the construction, operation, maintenance and/or repair
of the WCF. Such indemnification shall include damages, judgments, settlements, penalties,
fines, defensive costs or expenses, including, but not limited to, interest, reasonable attorneys'
fees and expert witness fees, or liability of any kind related to or arising from such claim, action,
or proceeding. The permittee shall also agree not to sue or seek any money or damages from
the City in connection with the grant of the permit and also agree to abide by the City's
ordinances and other laws. The City shall promptly notify the permittee of any claim, action, or
proceeding. Nothing contained herein shall prohibit City from participating in a defense of any
Exhibit A - Page 18
Draft 11-13-18
Ordinance No. 1673
claim, action or proceeding. The City shall have the option of coordinating the defense,
including, but not limited to, choosing counsel for the defense at the permittee's expense.
b. Additionally, to the fullest extent permitted by law, the permittee, and
every permittee and person in a shared permit, jointly and severally, shall defend, indemnify,
protect and hold the City and its elected and appointed officials, officers, boards, commissions,
agents, consultants, employees and volunteers harmless from and against all claims, suits,
demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to,
attorney's fees, interest and expert witness fees), or damages claird by third parties against
the City for any injury claim, and for property damage sustained, y"any person, arising out of,
resulting from, or are in any way related to the WCF, or to arty work done by or use of the
PROW by the permittee, owner or operator of the WCF, or their agts,. excepting only liability
arising out of the sole negligence or willful misconduct of the City and t elected and appointed
officials, officers, boards, commissions, agents, consultants, employees find volunteers and
independent contractors serving as City officials.
12. Performance security. Prior to issuance of any WCFP, the permittee shall pay
for and provide a performance bond or other form of security.tlat complies with the following
minimum requirements.
a. The security shall be in effect uttI`'the WCF is fully and completely
removed and the site reasonably returned to its original condition, to cover the removal costs of
the WCF in the event that use of this WOF is. abandoned prthe approval is otherwise
terminated.
b. The security shall bei # :a for at and amount approved by the Director
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and City Attorney's office. The amount of securty>shall be as determined by the Director to be
necessary to ensure proper c01 titin of the''applicant's removal obligations. In establishing
the amount of the security, t.0.01iirect0i.7Shall take into consideration information provided by the
applicant regarding the coast of removal. The amount of the security instrument shall be
calculated by the applicant as partdt„iiW,,apptication in an amount rationally related to the
obligations covered by thte security Instrument'. `The permittee shall be required to submit the
approved security instrument to:the Director prior to issuance of any WCFP for the proposed
facility.
Security shall always be imposed if the WCF is located in a PROW
adjacent to *residentially zoned property or residential uses.
13`'> »::;'Acceptance of conditions. The WCFP shall not become effective for any purpose
unless/until a tatty, 'Acceptance,of Conditions" form, in a form approved by the City Attorney's
office, has been d and;notarized by the applicant/permittee before being returned to the
Director; and until tett -::.....:y appeal period has elapsed. The permit shall be void and of no
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force or effect unless such iritten agreement is received by the City within said ten-day appeal
period.
Findings on Wireless Communications Facility Permit Applications. No permit shall be
granted for a WCFP unless all of the following findings are made by the Director (for a SWFP or
AWCFP) or by the City Council (on a referral from the Director or appeal from a Director
decision):
Exhibit A - Page 19
Draft 11-13-18
Ordinance No. 1673
1. General Findings. The Director may approve or approve with conditions any
SWFP or AWCFP required under this section only after making all of the following findings:
a. All notices required for the proposed deployment have been given by the
applicant.
b. The applicant has provided substantial written evidence supporting the
applicant's claim that it has the right to enter and use the PROW pursuant to state or federal
law, or the applicant has entered into a franchise or other agreement with the City permitting
them to enter and use the PROW.
c. The applicant has demonstrated that tl'1 ` ;will not interfere with the
use of the PROW, existing subterranean infrastructure, ortbe CityV:plans for modification or
use of such PROW location and infrastructure.
d. The applicant has demonstrated' that the WCF will `riot cause any
interference with emergency operations, as evidencediby competent evidence.
e. The proposed WCF's impacts have,a€ en mitigated through the use of
camouflage and concealment elements in accordance:a tt1 a requirements of this section and
the rules and guidelines.
f. The proposed WG oit: plies with all federal EMF emissions standards
and all other requirements of any federal nd /or`statcy,...,,
f. The proposed WCF ci orrn8 ith all applicable provisions of this section
and federal and state law.
g. The firldfngs required by thisSubsection shall be in addition to any other
findings required for approv I'of a ministerial permit der this code.
2. Additiona €€mdin s:.> r11 "riot collocated. To approve a wireless
telecommunications antenna th.at;i;€s' not collocated with other existing or proposed WCFs or a
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new or replacement ground-rn anted antenna, monopole, or lattice tower, the Director shall be
required to also f .:.mtat::collocaffc d'ar siting on an existing structure is not feasible because of
technical, aesthete, orlegat oonsideratttn including that such siting:
''a. Would ' ye more significant adverse effects on views or other
environmet'Eitconsiderations;
OP.,.Would impair the quality of service to the existing WCF; or
c. `AfW d i require existing WCFs at the same location to go off-line for a
significant period of time.
J. Exceptions; Director findings.
1. General requirements. In addition to the general findings set forth in Section
6.10.070.1, exceptions pertaining to any provision of this Section, including, but not limited to,
exceptions from findings that would otherwise justify denial, may be granted by the Director if
the Director makes either of the following findings:
Exhibit A - Page 20
Draft 11-13-18
A
Ordinance No. 1673
a. Denial of the WCF as proposed would violate federal law, state law, or
both; or
b. A provision of this section, as applied to applicant, would deprive
applicant of its rights under federal law, state law, or both.
2. Application. An applicant may only request an exception at the time of applying
for a SWFP or AWCFP. The request must include both the specific,provision(s) of this section
from which the exception is sought and the basis of the request. ...My'request for an exception
after the City has deemed an application complete shall be treated :sa new application.
3. Burden. The applicant shall have the burden:;prs tig, that denial of the WCF
as proposed would violate federal law, state law, or both,,or the provisions of this section, as
applied to applicant, would deprive applicant of its rights under federal law,::state law, or both,
using the evidentiary standards required by that law at issue.
4. Scope; Conditions. The City Counl'lshall limi ;its exception to the extent to
which the applicant demonstrates such an exception is necessary to reasonably achieve its
reasonable technical service objectives. In addition to the:standard conditions of approval
pursuant to Section 6.10.070.H, the City Council may:::40 €ther conditions of approval that are
reasonably necessary to promote the purposes in this scion and protect the public health,
safety and welfare.
K. Prohibited Locations.
Notwithstanding any other provision'I# ;:;thisisection, WCFs are prohibited in any of the
following locations, and no exception shall be gamed by the Director:
1. Any location oite within a PROW for which approval cannot be obtained from
the NWS.
2. Any locationr site;Wlthir e PROW'for which approval cannot be obtained by any
other federal or state ager y itt jurisdiction over the proposed WCF.
3. Any;#ovation, prohibi' dl;:pursuant to Section 6.10.070.G.4 of this chapter.
L. Nonexultasive GrantliN0,.permitbr approval granted under this section shall confer any
exclusive rift, privilege, licer :;,or franchise to occupy or use the PROW of the city for any
purpose whatsoever. Further, rmapproval shall be construed as any warranty of title.
M. Business License. AWCFP issued pursuant to this section shall not be a substitute for
any business license hprwl$e required under this code.
N. Temporary Wireless Communications Facilities
1. Emergency deployment. In the event of a declared federal, state, or local
emergency, or when otherwise warranted by conditions that the Director deems to constitute an
emergency, the Director may approve the installation and operation of a temporary wireless
telecommunications facility, subject to such reasonable conditions that the Director deems
necessary.
Exhibit A - Page 21
Draft 11-13-18
Ordinance No. 1673
2. Exclusions; removal. A temporary wireless communications facility shall not be
permitted for maintenance activities or while awaiting an expected entitlement or pending plan
review, and the allowance of a temporary wireless communications facility during an emergency
shall not be considered to establish a permanent use of such a facility after the emergency has
ended, as declared by the City Manager or other appropriate federal, state, or local official. Any
temporary wireless communications facilities placed pursuant to this Subsection N must be
removed within five days after the date the emergency is lifted. Any person or entity that places
temporary wireless communications facilities pursuant to this Subsection must send a written
notice that identifies the site location and person responsible for its operation to the Director as
soon as reasonably practicable.
O. Operation and Maintenance Standards. All WCFs must'toOloly at all times with the
following operation and maintenance standards and other standards set forth in the rules and
guidelines adopted by resolution of the City Council. •
1. Each WCF shall be operated and maintained to comply at •11 conditions of
approval. Each owner or operator of a WCF soli routinely;; inspect each site to ensure
compliance with the same and the standards set f .. in this section.
vti j,:i{hi}
•v:�::;�tiiix
2. No WCF shall be operated and marl .:...._• in any manner that causes any
interference with any emergency operations of the City other public agency.
3. Each WCF shall be oper4t ; r i maintained in OMpliance with all local, federal
and state laws and regulations..
P. Radio Frequency (RF) Emissions and thee Monitoring Requirements.
1. The permittee,::r 'and opera?.r of a WCF shall submit within ninety days of
beginning operations under anew oirmended `pcnit, and every five years from the date the
WCF began operations a technically siuufficient rept ("monitoring report") that demonstrates all
of the following:
a. The'>'I F:; ds in compliance with all applicable federal regulations,
including the FCC's RF errlpns standards as certified by a qualified radio frequency
emissions engineed dibi,:.
The is in compliance with all provisions of this section and the City's
conditions of approval.
Q. No Dangerous ConditOW n or Obstructions Allowed. No person shall install, use or
maintain any V\W ' which in; hole or in part rests upon, in or over any PROW, when such
installation, use or rititerapde endangers or is reasonably likely to endanger the safety of
persons or property, -cki*t.tibn such site or location is used for public utility purposes, public
transportation purposes or other governmental use, or when such WCF unreasonably interferes
with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally
parked or stopped vehicle, the ingress into or egress from any residence or place of business,
the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining,
permitted street furniture or other objects permitted at or near said location.
R. Permit Expiration.
Exhibit A - Page 22
Draft 11-13-18
Ordinance No. 1673
1. Unless Government Code Section 65964, as may be amended, authorizes the
City to issue a permit with a shorter term, a WCFP shall be valid for a period of ten years,
unless it lapses or is revoked sooner pursuant to this code or federal or state law. At the end of
ten years from the date of issuance, such permit shall automatically expire.
2. Extensions.
a. Time of application. A permittee may apply for,:extensions of its WCFP in
increments of no more than ten years and no sooner than 180 lays (six months) prior to
expiration of the permit. Any application a permit filed within 1: 0 days (six months) prior to
expiration shall require a new permit.
b. Application requirements. In addition to all other requirements of this
section, the permittee's application for extension shall include proof that the permittee continues
to have the legal authority to occupy and use the PROWfor the purpose set forth in its WCFP,
that the WCF site as it exists at the time of the extension application is in full compliance with all
applicable City permits issued for the site, and ,sail be accompanied by an affidavit and
supporting documentation that the WCF is in compliance with all applicable FCC and NWS and
other governmental regulations. At the Directors' distretio. : additional studies and information
may be required of the applicant. The application sl at iti. companied by the fee for renewal,
as set by the City Council from time to time. Grounds'foinon-renewal of the WCFP shall
include, but are not limited to, the permittee's failure to sutbttilt::.the affidavit or proof of legal
authority to occupy or use the PROW. : ht ! utden,is on the perittee to demonstrate that the
WCF complies with all requirements for artextensi r :: ::;:>:
•
c. Director decision. Except as'itherwise provided by subparagraphs (i) or
(ii) of this Section 6.10.070.R.2.c,, if a WCFP•thasOot expired at the time a timely application is
made for an extension, the G Ifectormay adrilitOstratively extend the term of the WCFP for
subsequent ten-year terms g on v a cation of ntinued compliance with the findings and
conditions of approval and which t ` applicationwas originally approved, all provisions set
2
forth in Subsection R. b above, and any other applicable provisions of this code that are in
effect at the time the penm:it;=extensEQn is granted:':The Director's decision shall be issued in the
form of a written determinati..rte.. r in accordance with Section 6.10.070.F.3.
.......... ...
................
..............
If the:Director determines that the WCF is nonconforming or that
additional coed ions of''approval artotOcessary to bring the WCF into compliance with the
provisions oaft'e code that`a ;then in effect at the time of permit expiration, the Director shall
refer the extension request to tke:City Council.
(ii) No withstanding any other provision of this section, the Director
may, in the Directors: discretion, refer any application for an extension of a WCFP to the City
Council for approval .„,,,„,„:: :„.
c, City Council decision. The request for an extension shall be decided by
the City Council if the WCFP expired before the application is made for an extension or if the
Director refers the matter to the City Council. After notice and a public hearing, the City Council
may approve, conditionally approve, or deny the extension. The City Council's decision shall be
issued in writing in accordance with Section 6.10.070.F.4.d.
Exhibit A - Page 23
Draft 11-13-18
Ordinance No. 1673
3. New application. Any request for an extension that is filed less than 180 days
(six months) prior to the expiration of the WCFP shall require a new application in accordance
with the then-current requirements of this code.
S. Cessation of Use or Abandonment.
1. A WCF or wireless communications collocation facility is considered abandoned
and shall be promptly removed as provided herein if it ceases to provide wireless
communications services for 90 or more consecutive days. If there are two or more users of a
single facility, then this provision shall not become effective until all users cease using the
facility.
2. The operator of a facility shall notify the City arr writing tufts,,intent to abandon or
cease use of a permitted site or a nonconforming site (including an unpen tted site) within ten
days of ceasing or abandoning use. Notwithstanding any other provision herein,the operator of
the WCF shall provide written notice to the Director ref any discontinuation ofoperations of 30
days or more.
3. Failure to inform the Director of cessation or.:discontinuation of operations of any
existing WCF as required by this Subsection shall core";._,e a violation of any approvals and be
` 10
grounds for enforcement pursuant to Subsection T. %,.;.
T. Revocation or Modification; Remo:. «<> :: :;:;;;. Kati.
1. Revocation or modification t ICFP.;; : °'"'
a. The City may revoke an FP if the operation or maintenance of the
WCF violates any of the permit;` tt :.or condttitps, this section or any other ordinance or law.
b. Revocation shat require notice and a public hearing before the City
Council in accordance With'the provi*ns vf.; .ction 1.20.010 of Chapter 1.20 of Title 1 of the
code.
c. The CitV.zatoncil may revoke or modify the WCFP if it makes any of the
following findingsien
;iii:,: '
(i) ``< lhe WCFP has expired as provided for in Subsection R: Permit
Expiration. >:
(ii) The WCF has been abandoned as provided in Subsection S:
Cessation of U8.4bandonment.
Iii4WThe permittee has failed to comply with one or more of the
conditions of approval, this section or any other provision of this code.
(iv) The WCF has been substantially changed in character or
substantially expanded beyond the approval set forth in the permit.
2. Permittee's removal obligation. Upon the expiration date of the WCFP, including
any extensions, earlier termination or revocation of the WCFP or abandonment of the WCF, the
WCFP shall become null and void, and the permittee, owner or operator shall completely
Exhibit A - Page 24
Draft 11-13-18
Ordinance No. 1673
remove its WCF or wireless communications collocation facility. Removal shall be in
accordance with proper health and safety requirements and all ordinances, rules, and
regulations of the City. The WCF shall be removed from the property within 30 days, at no cost
or expense to the City. If the WCF is located on another WCF or other private property, the
private property owner shall also be independently responsible for the expense of timely
removal and restoration.
3. Failure to remove. Failure of the permittee, owner,.t or operator to promptly
remove its WCF and restore the property within 30 days after exp ra ion, earlier termination, or
revocation of the WCFP, or abandonment of the WCF, shall be a tiolation of this code, and be
grounds for:
a. Prosecution;
NUL
b. Calling of any bond or other aSSurance required 6v` this section or
conditions of approval of permit;
c. Removal of the WCF by City in.. ordance with the procedures
established under this code for abatement of a putiliuisance'at the owner's expense; and/or
d. Any other remedies permitted underti~is code.
4. Summary removal. In th :.ant:;:the Director determines that the condition or
placement of a WCF or wireless comi'tnicatolpcation facility located in the PROW
constitutes a dangerous condition, obstriii on of the 'PRC , or an imminent threat to public
safety, or determines other exigent circi instances require immediate corrective action
(collectively, "exigent circumstances"), the 'ltrector may cause the WCF to be removed
summarily and immediately wit#hodvance notice or a hearing. Written notice of the removal
shall be served upon the per 3ni who wns the WCF within five business days of removal and
all property removed shall be preserved;for the owri *'s pick-up as feasible. If the owner cannot
be identified following reasonable e€ rt or f the owner fails to pick-up the property within 60
days, the WCF shall be tt'eated as:a, rtdo'net property.
5. Removal of fadtlififti,Py City. In the event the City removes a WCF in accordance
with nuisance abatent::.:proced ::;or summary removal, any such removal shall be without
any liability to,t} Ciity'for tty,.dama to such WCF that may result from reasonable efforts of
removal. In addition to the procedures for recovering costs of nuisance abatement, the City
may collect'such costs from the performance bond posted and to the extent such costs exceed
the amount of the performance ibond, collect those excess costs in accordance with this code.
Unless otherwf .provided herfri, the City has no obligation to store such WCF. Neither the
permittee nor th Owner nor Orator shall have any claim if the City destroys any such WCF
not timely removed.1*Ibgglognittee, owner, or operator after notice, or removed by the City due
to exigent circumstances '
6. Non-exclusive remedies. Each and every remedy available for the enforcement
of this section shall be non-exclusive and it is within the discretion of the authorized inspector or
enforcing attorney to seek cumulative remedies set forth in this code, except that multiple
monetary fines or penalties shall not be available for any single violation of this section.
U. Deemed Granted. In the event that a WCF application is deemed granted by rule of
federal or state law, all conditions, development and design standards, and operations and
Exhibit A - Page 25
Draft 11-13-18
Ordinance No. 1673
maintenance requirements imposed by this section and any rules and guidelines are still
applicable and required for the installation.
V. Effect on Other Ordinances. Compliance with the provisions of this section shall not
relieve a person from complying with any other applicable provision of this code. In the event of
a conflict between any provision of this section and other sections of this code, this section shall
control.
W. State or Federal Law.
1. In the event it is determined by the City Attor' ey that state or federal law
prohibits discretionary permitting requirements for certain WFssach requirement shall be
deemed severable and all remaining regulations shall remat1 in full f.di and effect. Such a
determination by the City Attorney shall be in writing with citations to legal authority and shall be
a public record. For those WCFs, in lieu of a SWFP or AVVCFP, a ministerial wireless facilities
permit shall be required prior to installation or modification of a WCF, and all provisions of this
section shall be applicable to any such facility with the exception that the required permit shall
be reviewed and administered as a ministerial permit by the Director rather than as a
discretionary permit. Any conditions of approvat: S.t forth in this section or the rules and
guidelines, or deemed necessary by the Director;`":; a 1 be imposed and administered as
reasonable time, place and manner rules.
2. If subsequent to the is € sof. the City l'trney's written determination
pursuant to Subsection 6.10.070.W.1, 604.ve.,--theOlttiAkttor..ney determines that the law has
changed and that discretionary permitting s:, perm s bfe 11fte City Attorney shall issue such
determination in writing with citations to al. uthority and all discretionary permitting
requirements shall be reinstated. The City iortey's written determination shall be a public
record.
3. All WCFs shoal be buil;iiNf compliance';rrith all federal and state laws including but
not limited to the Amerigg0With DisablIttiegA t'(AOA).
4. Changes it 4a A WCFs shall meet the current standards and regulations of
the FCC, the CPUC and any oc agency of the federal or State government with the authority
to regulate wira#ess <communiicaidns providers and/or WCFs. If such standards and/or
regulations are changed the permittee:tend/or wireless communications provider shall bring its
WCF into compliance with such revised standards and regulations within ninety (90) days of the
effective date of such standardsand regulations, unless a more stringent compliance schedule
is mandateby.:the controlling tetleral or state agency. Failure to bring WCFs into compliance
with any rev s id standards and t'egulations shall constitute grounds for the immediate removal
of such facilities at the:,.permitt and/or wireless communications provider's expense.
I
X. Nonconforming Me ess Communications Facilities.
1. A legal nonconforming WCF is a facility that was lawfully constructed, installed,
or otherwise deployed in the PROW prior to the effective date of this section in compliance with
all applicable City, state and federal laws and regulations, and which facility does not conform to
the requirements of this section.
2. Legal nonconforming WCFs shall comply at all times with the City, state and
federal laws, ordinances, and regulations in effect at the time the application was deemed
Exhibit A - Page 26
Draft 11-13-18
Ordinance No. 1673
complete, and any applicable Federal or State laws as they may be amended or enacted from
time to time, and shall at all times comply with the conditions of approval. Any legal
nonconforming facility which fails to comply with applicable laws, ordinances, regulations or the
conditions of approval may be required to conform to the provisions of this section.
3. Modifications to legal nonconforming WCFs may be permitted under the following
circumstances.
a. Ordinary maintenance may be performed pf1a legal nonconforming
facility.
b. Modifications may be made to an eligiblfh ( y,, to the extent expressly
required by Section 6409.
4. Any nonconforming WCF that was not lawfully installed, constructed or otherwise
deployed in the PROW in violation of any applicable :p3'itiances, laws or regulations in effect at
the time of its deployment is an illegal use and ;sh#ll be subject to abatement as a public
nuisance in accordance with the code and/or any.oir applicable federal and/or state laws, and
the owner thereof shall subject to all civil and criminal remecltes provided by the code and law.
,
Irs
k•
Exhibit A - Page 27
Draft 11-13-18
EXHIBIT "B"
CITY OF SEAL BEACH ORDINANCE NO. 1673
NEW SECTION 6.10.075 WIRELESS COMMUNICATIONS FACILITIES IN
THE PUBLIC -RIGHTS-OF-WAY -- ELIGIBLE FACILITIES REQUESTS
"6.10.075 Wireless Communications Facilities in the Public Rights-of-Way -- Eligible
Facilities Requests.
A. Purpose and Intent.
1. Section 6409(a) of the Middle Class Tax;Relief and Job` r tion Act of 2012,
Pub. L. 112-96, codified as 47 U.S.C. Section 1455(a) t"Section 6409"), genet I1y requires that
state and local governments "may not deny, and shall;approve" requests to collocate, remove or
replace transmission equipment at an existing tower'or base Station. Federal Communication
Commission ("FCC") regulations interpret this statute and establish procedural rules for local
review, which generally preempt certain subjecti411-us '' gulations, limit permit application
content requirements and provide the applicant with a` 0tal "deemed-granted" remedy when
the state or local government fails to approve or deny thir quest within sixty (60) days after
submittal (accounting for any tolling periods). Moreover, whereas Section 704 of the
Telecommunications Act of 1996, Pub. L< 1O O4*c.odified as 47 .S.C. Section 332, applies to
only "personal wireless service facilities" (e g' '<e 1 1ar;::#elephone towers and equipment),
Section 6409 applies to all "wireless" faciliti :licendrIttuth6rizedlicensed by the FCC (e.g., cellular,
Wi-Fi, satellite, microwave backhaul, etc.). Ilk
2. The City Councfi d ;that the' :lap between wireless deployments covered
under Section 6409 and other wireless deployr'1s, combined with the different substantive
and procedural rules applicable to such deployrrts, creates a potential for confusion that
harms the public interest in both efficient reless:'facilities deployment and carefully planned
community development? rt accord e3 WiitII foto values. The City Council further finds that a
separate permit applicati**K1 review process specifically designed for compliance with
Section 6409 contained in ai` ption devoted to Section 6409 will mitigate such potential
confusion, streamfi locl;review and preserve the city's land-use authority to maximum extent
possible.
3.AL This Section estsiiishes reasonable and uniform standards and procedures in a
manner that protects and promotes the public health, safety and welfare, consistent with and
subject to feller land California State law, for wireless facilities collocations and modifications
pursuant to Sectr6.4:09, and related FCC regulations codified in 47 C.F.R. Section 1.40001 et
seq. or any successor *gu t on. This section is not intended to, nor shall it be interpreted or
applied to:
a. Prohibit or effectively prohibit any wireless service provider's ability to
provide wireless communications services;
Exhibit B - Page 28
Ordinance No. 1673
b. Prohibit or effectively prohibit any entity's ability to provide any interstate
or intrastate wireless communications service, subject to any competitively neutral and
nondiscriminatory rules, regulations or other legal requirements for rights-of-way management;
c. Unreasonably discriminate among providers of functionally equivalent
services;
d. Deny any request for authorization to place, construct or modify WCFs on
the basis of environmental effects of radio frequency emissions toe extent that such WCFs
comply with the FCC's regulations concerning such emissions;
e. Prohibit any collocation or modification„that the;City may not deny under
federal or California State law; or
f. Otherwise authorize the City to prEempt any applicabie €ederal or state
law.
4. The City Council may adopt rules>'and guidelines by resolution to further
implement and administer this section, which rnarnilpplucllut are not limited to, provisions
addressing applications and the application review process 'notices, location, development and
design standards, conditions, and operations and rr atntenance requirements for eligible
facilities. The Director may adopt policies, procedures and Rims consistent with this section
and any Council-adopted rules and
B. Definitions. For the purposes of thiO4.ectionAtieAtilliming words and phrases have the
meanings set forth below. Words and phrases .7.6-r specifically defined in this section will be
given their meaning ascribed to them in Section 6.10.070 of this chapter or as otherwise
provided in Section 6409, the C;ommunicatior s;Act or any applicable federal or state law or
regulation.
Application: a written submission to tlhe City for the installation, construction or other
deployment of an eligible facility antd:>ether related ministerial permits to obtain final approval of
the deployment of an eligibleacilVat a specified location.
Base station: t €hiss ;,;as deft eby the FCC in 47 C.F.R. Section 1.40001(b)(1), or any
successor regal lon;i i t efines thatterm as a structure or equipment at a fixed location that
enables FCCllcensed or authorized wireless communications between user equipment and a
communicafOhs network. The .term does not encompass a tower as defined in 47 C.F.R.
Section 100£1(b)(9), or any successor regulation, or any equipment associated with a tower.
The term includesbut is not;lj. ited to, equipment associated with wireless communications
services such asl`lluate, broadcast, and public safety services, as well as unlicensed wireless
services and fixed wlrelass:.:services such as microwave backhaul. The term includes, but is not
limited to, radio transcel er, 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). The term includes any structure other
than a tower that, at the time the relevant application is filed with the state or local government
under 47 C.F.R. Section 1.4001, or any successor regulation, supports or houses equipment
Exhibit B - Page 29
Ordinance No. 1673
described in 47 C.F.R. Sections 1.40001(b)(1)(i), or any successor regulation, and (ii) that has
been reviewed and approved under the 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 such support. The term does not include any structure that, at the time the
relevant application is filed with the state or local government under this section, does not
support or house equipment described in 47 C.F.R. Sections 1.40001(b)(1)(i) and (ii), or any
successor regulation.
Collocation: For purposes of an eligible facilities request, means:A e same as defined by the
FCC in 47 C.F.R. Section 1.40001(b)(2), or any successor regulaUn , which defines that term
as the mounting or installation of transmission equipment on an< bgible support structure for the
purpose of transmitting and/or receiving radio frequency sigpOkfbribbmmunications purposes.
As an illustration and not a limitation, the FCC's definition :effectively''fans "to add" and does
not necessarily refer to more than one wireless facility installed at a single:iiSte ,
Day: a calendar day, except as otherwise provided in;:ts section.
Eligible Facility Permit (EFP): a permit for an eligible facilities request under Section 6409 that
meets the criteria set forth in this section.
Eligible facilities request: the same as defined by the P.00:#.1...,.47 C.F.R. Section 1.40001(b)(3),
or any successor regulation, which defines that term as`ai' reuest for modification of an
existing tower or base station that doesritsu# tantially chatig0 the physical dimensions of
such tower or base station, involving: ('1), .661166010. :of::;;:new transmission equipment; (2)
removal of transmission equipment; or (3) re pllacemet ortfaftsmission equipment.
Eligible support structure: the. same a*q,4efined by the FCC in 47 C.F.R. Section
1.40001(b)(4), or any successorregu ation, whid.biibefines that term as any tower or base station
as defined in 47 C.F.R. Section 1.40001(b)(1) or( );.or any successor regulation; provided, that
it is existing at the time the;.';relevant application is fi iii with the state or local government under
this definition.
Existing: the same as defined€::tithe FCC in 47 C.F.R. Section 1.40001(b)(4), or any successor
regulation, which provides ti at'' 'constructed tower or base station is existing for purposes of
the FCC's Section ( 09 regulatiions if:;at has been reviewed and approved under the applicable
zoning or sitirt process '# runder another state or local regulatory review process; provided,
that a tower; has not beef reviewed and approved because it was not in a zoned area when
it was builtxt was lawfully constructed, is existing for purposes of this definition.
Rules and gt#4t; nes: The ruieS, guidelines, regulations and procedures adopted from time to
time by resolutioril `ie City,; ouncil to administer and implement this section.
............. ........
............ ........
............ ........
....................
Site: the same as definoy the FCC in 47 C.F.R. Section 1.40001(b)(6), or any successor
regulation, which provides that for towers other than towers in the public rights-of-way, the
current boundaries of the leased or owned property surrounding the tower and any access or
utility easements currently related to the site, and, for other eligible support structures, further
I
Exhibit B - Page 30
■
Ordinance No. 1673
restricted to that area in proximity to the structure and to other transmission equipment already
deployed on the ground.
Substantial change: the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(7), or
any successor regulation, which defines that term differently based on the type of eligible
support structure (tower or base station) and location (in or outside the PROW). For clarity, this
definition organizes the FCC's criteria and thresholds for determining if a collocation or
modification substantially changes the physical dimensions of a wireless tower or base station
based on the type and location.
1. For towers outside the PROW, a substantial change;€occurs when:
a. The proposed collocation or modification increases;::the overall height of
the tower by more than 10% or the height of one additional antenna array tith separation from
the nearest existing antenna not to exceed 20 feet (whichever is greater);
b. The proposed collocation or modification,:adds an appurtenance to the
body of the tower that would protrude from the 0066 of the;tOer more than 20 feet, or more
than the width of the tower structure at the level of teappurteance (whichever is greater); or
c. The proposed collocation or modifi0Opp involves the installation of more
than the standard number of equipment cabinets for the techlpgy involved, but not to exceed
four; or
d. The proposed collocatipn or niotf f oa ii'involves excavation outside the
current boundaries of the leased or owned' roperty surrounding the wireless tower, including
any access or utility easements currently related tt the site.
2. For towers inthe PROW and for :01t-;base stations, a substantial change occurs
when:
a. The, proposedOTicatiei '<>b`r modification increases the overall height of
the tower more than 10% or 10 feet>(whichever is greater); or
b. he propo ecI collocation or modification involves adding an
appurtenance t; :the bodirof;.the sf u ure that would protrude from the edge of the tower or
base station„biThore than ss feet; or
The proposed collocation or modification involves the installation of any
new ground41)00nted equipmenif cabinets when there are no pre-existing ground-mounted
equipment cabi 6.ji associate lith the structure; or
............ ........
............ ........
.....................
............ ........
d. The proposed collocation or modification involves the installation of any
new ground-mounted equipment cabinets that are more than 10% larger in height or overall
volume than any other existing ground-mounted equipment cabinets; or
Exhibit B - Page 31
Ordinance No. 1673
e. The proposed collocation or modification involves excavation outside the
area in proximity to the structure and other transmission equipment already deployed on the
ground.
3. In addition, for all towers and base stations wherever |onated, a substantial
change occurs when:
a. The d collocation or modification |d defeat the existing
concealment elements of the eligible support structure (wirelessjpwer or base station) as
reasonably determined by the Director; or
b. The proposed collocation or modificatiO'VlOptes a prior condition of
approval; provided, however, that the collocation need nc!..V46mply with. any prior condition of
approval related to height, width, equipment cabinets or.exdavation that *0):cpnsistent with the
thresholds for a substantial change described in this Septkin.
4. For purposes of this definition, changeg.in height,,should be measured from the
original support structure in cases where deployffients areOrwill be separated horizontally,
such as on buildings' rooftops; in other circumstifi0e,hch:4.0.0es in height should be measured
from the dimensions of the tower or base station, inCf4.(400originally approved appurtenances
and any modifications that were approved prior to the paSte0.e...of the Spectrum Act.
Tower: the same as defined by the FC4ii:M4P.,k:Ft;.. Sectioir.,,i&: 001(b)(9), or any successor
regulation, which defines that term as '..efly,:..Stitittufwilviit,:,„fpf.:.:the sole or primary purpose of
supporting any FCC-licensed or authorizelentenneatitt Met associated facilities, including
structures that are constructed for wirelesS:Mhrgalcations Services including, but not limited
to, private, broadcast, and publicsafety servite*.Ves well as unlicensed wireless services and
fixed wireless services suchil401.0prowave baClchaul, and the associated site. Examples
include, but are not limited t.c.OtionoOles, monofrees. and lattice towers.
Transmission equipme0 . the sai.0...... gsmiclefi:hed by the FCC in 47 C.F.R. Section
1.40001(b)(8), or any stic00§isor rpg0Iitiqrt"Whidhi''defines that term as equipment that facilitates
transmission for any FCCA001400' or authorized wireless communications service, including,
but not limited to, radio trantcgi(*rs, antennas, coaxial or fiber-optic cable, and regular and
backup power sp,PlaiThP terrrilodigles equipment associated with wireless communications
services includi66:::::-buf faRtitiyate, broadcast, and public safety services, as well as
unlicensed wifeless servicet.'Afid fixed Wireless services such as microwave backhaul.
AjOippility. This secti.0.0 applies to all requests for approval to collocate, replace or
remove tranSftliesi,on equipm.eW at an existing wireless tower or base station submitted
pursuant to Sectiorig409. cyeOf if the proposed project would otherwise require a SWFP or an
AWCFP under SeCii010070 of this chapter, and/or a ministerial permit, eligible facility
requests submitted for,: ppii.Oval pursuant to Section 6409 must be first reviewed under this
section. If the approval adthority finds that the project qualifies for approval under Section 6409,
then no SWFP or AWCFP will be required. However, the applicant may voluntarily elect to seek
a SWFP or an AWCFP under Section 6.10.070 either in lieu of an EFP approval or after the
m
Exhibit B - Page 32
m
Ordinance No. 1673
approval authority finds that an application does not qualify for an EFP approval pursuant to
Section 6409.
D. Approvals Required.
1. Eligible Facility Permit (EFP) approval. Any request to collocate, replace or
remove transmission equipment at an existing wireless tower or base station shall require
approval of an EFP subject to the Director's approval, conditional approval or denial without
prejudice pursuant to the standards and procedures contained in tfhisection and the rules and
guidelines.
2. Other permits and regulatory approvals. No c01lltatt ::per modification approved
pursuant to this section may occur unless the applicant,iiialsO obtains all other permits and
regulatory approvals as may be required by any other.., federal, stateor::local government
agencies, which include without limitation any ministerial permits and/or rrgutatory approvals
issued by other departments or divisions within the >City. Furthermore, any EFP approval
granted under this section shall remain subject tdoriy and all lawful conditions and/or legal
requirements associated with any other permits or regulatoryalrovals for the existing wireless
tower or base station.
E. Application Procedures. An application for a EFP::..shall be filed and reviewed in
accordance with the following provisions and the rules andguItlines.
1. Complete application required.-ThiwapOicapt.shalf submit an EFP application in
writing to the Public Works Department on<oity-artvediforrn as prescribed by the Director,
and shall contain all required notices, inforrrrtion,,t}'taterials and documentation required by this
section and the rules and guidelines, or as<otherwise determined to be necessary by the
Director to effectuate the pur i nd intent of this section. The Director may waive certain
submittal requirements or:; iire additional information based on specific project factors.
Unless an exemption or waiver applie 'all applications shall include the completed form and all
information, materials, p60:documetitilipmfogyirpcl.by the City. An application which does not
include the required `foms., inforn tion`;' �rria'etials and documentation shall be deemed
incomplete, and a notici f<::iri Omplete application shall be provided to the applicant in
accordance with Subsection E <>of..this section.
( ub3tc notice. €ri addition to all other requirements of this section and the
rules and giAidOtines, the appIk ation shall include a notice that complies with the City-approved
text and format, and contains al of the following information:
.144'1'::. (i) A' ieneral explanation of the proposed collocation or modification;
4if .. . `:':;The applicant's identification and contact information as provided
on the application subn`i tte I to the City;
(iii) Contact information for the approval authority; and
Exhibit B - Page 33
Ordinance No. 1673
(iv) A statement substantially similar to the following: "Federal
Communications Commission regulations may deem this application granted by the operation of
law unless the City approves or denies the application within sixty (60) days from the filing date,
or the City and applicant reach a mutual tolling agreement."
2. Application fees. Concurrent with submittal of the application, the applicant shall
pay an application fee and processing fee, a deposit for an independent expert review as set
forth in this section, and a deposit for review by the City Attorney's office, in a payment format
accepted by the City Finance Department and in amounts set by resolution of the City Council.
Failure to pay the fees in full at the time of application submittal s#tpil result in the City deeming
the application incomplete. Fees shall be set by resolution ofi!>t[ p::..City Council, and shall be
determined in accordance with Section 6.10.070.E.2 of this
jig p•
3. Voluntary Pre-submittal Conference. Prior.to application s bmittal, the applicant
may schedule and attend a voluntary pre-submittalconference with 'th ;;;;,Public Works
Department and Community Development DepartmentOtaff for all proposed eiig'lble facilities in
the PROW. The purpose of the voluntary pre-slrnittal conference is to provide informal
feedback on the proposed classification of the faci[tty as an efible facility under Section 6409,
review procedure, location, design and application ateriaJS >to identify potential concerns and
to streamline the formal application review process after submittal. Participation in a voluntary
pre-submittal conference shall not trigger the shot clocks specified in Section 6.10.075.E.6.
4. Appointments. The Direc 0.01)0;require that art:. pplication shall be submitted
only at a pre-arranged appointment in adrdartce'ti ttttlhe rules and guidelines. The Director
has the discretion to set the frequency art in:umber s apptstrtments that will be granted each
day. The requirement for an appointment sfabe;;pblished on the Department's website.
5. Independent expert 'l e Directoris authorized to retain on behalf of the City an
independent, qualified cons tlt�int to review any application for an EFP to review the technical
aspects of the applicatic.n' including but not Iftlited to: the accuracy, adequacy, and
completeness of submissions; compliance; ith applicable radio frequency emission standards;
whether any requested'e ption i;. tecessa ;technical demonstration of the facility designs or
configurations; technical feisibility' coverage analysis; the validity of conclusions reached or
claims made by applicant or other factors as deemed appropriate by the Director to determine
whether the proposed apil ty quaIif es;>as an eligible facility under Section 6409. The cost of this
review shall be:;paid by the applicant through a deposit pursuant to an adopted fee schedule
resolution.
6.` .;ii0i 8.hot Clock; Tim&nle for review and action. The timeline for review of and action
on an EFP application shall begin to run when the application is submitted in writing to the
Department but maybe tolleby mutual agreement or upon the City's issuance of a notice of
incomplete application tt the pplicant pursuant to Subsection E.7 of this Section. .Applications
shall be processed in `ooriformance with the time periods and procedures established by
applicable state and federal law, and FCC regulations and orders. The following provisions
shall apply:
Exhibit B - Page 34
Ordinance No. 1673
a. 60 days — Within sixty (60) days of the date on which an applicant
submits a written request seeking approval of an eligible facilities request under this section, the
City will approve the application unless the City determines that the application is not covered
by this section or the 60-day deadline is tolled pursuant to mutual agreement or Subsection (b).
b. Tolling of Shot Clock. The 60-day timeframe for review of a proposed
eligible facility shall begin to run when the application for the EFP is submitted in writing to the
Department but may be tolled by mutual agreement or upon the City's issuance of a notice of
incomplete application to the applicant pursuant to this Subsection.
(i) First Incomplete Notice. Withinthr:ty (30) days of the City's
receipt of the initial application for an EFP, Department staffShaul` vide written notice to the
applicant that the application is complete or incomplete. . f the app on is incomplete, the
notice shall clearly and specifically delineate all missing information and documents. The 30-
day shot clock date shall be tolled until the applicant hakes a supplementl;;submission in
response to the City's notice of incompleteness.
(ii) Subsequent Incomptet€ Notice$0 Within ten (10) days of each
supplemental submission, the City shall deem thea location complete or incomplete. If the
supplemental submission is incomplete, the notice shallclearly and specifically delineate all
missing information and documents from the supplementaLiubmission based on the information
or documents identified in the first notice delineating missing'`€pfoirnation or documentation. The
10-day timeframe is tolled in the case; of second or subseetuent notices pursuant to this
procedure. Second or subsequent riotices' of f completeness may not specify missing
documents or information that were not delineated inthe original notice of incompleteness.
........ ........
........ ........
........ ........
....... .......
(iii) OneT
Submittal." he applicant's response and submission of
supplemental materials and infiston in response to a notice of incomplete application must
be given to the City in one submittal packet.
F. Notice and Decision. Proci for ;public notice, approval authority review of and
action on EFP applications Are set:forth in this subsection and in the rules and guidelines.
1. Public notice of } lcation. Upon submittal of a complete EFP application to the
City, the applicant;;;shal Sand the'' -pproved public notice of the application to all businesses
and residents within a` 16 €oot rads#.#&. f the proposed eligible facility in accordance with the
rules and guidelines. Concurrently with service on the businesses and residents, the applicant
shall also;<send a copy of the:approved public notice to the Department along with proof of
service of..the-public notice on al residents and businesses as required by this subsection.
2. Pull€G;:;commefnt>' Within ten (10) days from service of the notice, any interested
person may submit::]40nOpts on the proposed eligible facility to the City by U.S. Mail or
through the City's website Any timely public comments received will be considered during the
Director's review of the application.
3. Director action on EFP applications.
Exhibit B - Page 35
Ordinance No. 1673
a. Director review, decision and notice. Upon receipt of a complete
application for EFP pursuant to this section, the Director shall review the application and all
pertinent information, materials, documentation and public comments. The Director's decision
shall be based on substantial evidence in the written administrative record. The Director may
approve, or conditionally approve an application for an EFP if the Director makes all of the
findings required in Section 6.10.075.F.4. The Director may impose conditions in accordance
with Section 6.10.075.F.6. Within five days after the Director approves or conditionally
approves an application under this section, or expiration of the shct:..clock period set forth in
Section 6.10.075.E.6, whichever occurs sooner, the Director shall j; e a written determination
letter, and shall serve a copy of the determination letter on the applicant at the address shown in
the application and shall cause the determination letter to be pulled on the City's website.
4. Required findings for EFP approval. The Director shalt approve or conditionally
approve an application for an EFP pursuant to Section::. 4D9 and this''section if the Director
makes all of the following findings:
a. The applicant has provides 'all forms,;;. information, materials, and
documentation for the proposed project required bythis section,.
b. The proposed project is for thgetaliOation, removal or replacement of
transmission equipment on an existing wireless tower or be:::station;
c. The proposed project < &;.not constitute::;>a substantial change to the
physical dimensions of the existing wireless tower0p0.0§e. station, as defined in Section
6.10.075.B; and
d. The proposed project otherwise qualifies as an eligible facility under then-
existing provisions of Section 6.400: : :•-•
5. Criteria for_de ial wither prejudice``` otwithstanding any other provisions in this
chapter, and consistent.. 0 all appl.j.00§iggvctgati,ilaws and regulations, the Director may deny
without prejudice an appjcation;frl approval')d an EFP when the Director finds that the
proposed project:
not satisfy the findings for approval as an eligible facility under
Subsection E.3 ofthi
b. InvolveSIN replacement of the entire support structure;
Violatespy legally enforceable standard or permit condition related to
compliance with generally applicable disability access, building, structural, electrical and/or
safety codes;
d. Violates any legally enforceable standard or permit condition reasonably
related to public health and safety then in effect; or
I
Exhibit B - Page 36
I
I
I
Ordinance No. 1673
e. Does not qualify for mandatory approval under Section 6409 for any
lawful reason.
6. Conditional approvals. Subject to any applicable limitations in federal or state
law, , and in addition to the standard conditions of approval required by Section 6.10.075.F.6,
nothing in this section is intended to limit the City's authority to conditionally approve an
application for an EFP under Section 6409 to protect and promote the public health, safety and
welfare in accordance with this section and the rules and guidelines,,including but not limited to,
building code standards and health and safety conditions, and a other reasonable time,
place and manner conditions authorized under applicable .federal and state laws and
regulations. The standard conditions set forth in of Section 6.105.G shall apply to all eligible
facilities.
7. Written decision. The Director's decision shall'be issued inwnting in accordance
with the procedures set forth in Section 6.10.075.F.3 a. and the Council-adopted rules and
guidelines.
8. Appeals. Any applicant may appeal the Director's written decision to deny
without prejudice an application for approval of an EFP, in accordance with this Subsection.
a. The written appeal, together with any appeal fee, must be filed with the
City within ten (10) days from service..and posting of'>the ;,Director's written decision in
accordance with Section 6.10.075.E 3 a ' Tf. appea.l must state in plain terms the grounds for
g'
reversal and the facts that support those 0)0§:,ft::. As Section 332(c)(7) of the
Telecommunications Act preempts local ,;decisions:;premised directly or indirectly on the
environmental effects of radio frequency (R ). emissions, appeals to the Director's decision
premised on the environmental effects of radiofregiency emissions will not be considered.
b. The City`Counc lshall be ii.igi,appellate authority for all appeals from the
Director's written decisiont >deny without prejudicein application for approval of an EFP. The
City Council shall review the applica of .r r eo;:.;but the City Council shall limit its review to
whether the EFP should be approv #i'ordenied l accordance with the provisions in this section
and all other applicable Ia S The City Council shall issue a written decision, in the form of a
resolution, that contains the rei dns for the decision and the facts supporting that decision. The
decision of the City Coiancilshall be final and not subject to any further administrative appeals.
9. .:<iii;Meemed Appr'c ed.
a.. If the City:. tails to act on an EFP application within the 60-day review
period refereri d: in Section i''6.10.075.E.6.a. (subject to any tolling pursuant to written
agreement or See40n:::6.10.07 E.6.b.), the applicant may provide the City written notice that the
time period for acting has laed, and the City then has twenty (20) days after receipt of such
................ps
notice within which to feeder its written decision on the application. To the extent required by
Section 6409, upon the City's failure to render a decision within that 20-day period, the
application is then deemed approved by passage of time and operation of law.
Exhibit B - Page 37
Ordinance No. 1673
b. The applicant shall provide written notice to the City at least seven days
prior to beginning construction or collocation pursuant to an EFP issued pursuant to a deemed
approved application.
c. An EFP deemed approved pursuant to Section 6409 shall comply with all
applicable building code standards and traffic, health and safety requirements of the code
deemed applicable by the Director.
d. Effect of Changes to Federal Law. This subseion does not and shall not
be construed to grant any rights beyond those granted by Sectio 16409 and its implementing
federal regulations. In the event Section 6409 or applicable regiitions are stayed, amended,
revised or otherwise not in effect, no modifications to an eligidie' 0.ty shall be processed or
approved under this subsection E.9 or any other provision ofths
G. Standard Conditions of approval applicable to all applications. 'All€€iEFP approvals,
whether approved by the approval authority or deemed approved by the operation of law, shall
be automatically subject to the conditions in this: ubsection; ;in addition to any conditions
imposed pursuant to Section 6.10.075.F and the7.0106 and guidelines. The Director (or the City
Council on appeal) shall have discretion to modqo..(amenalithese conditions on a case-by-case
basis as may be necessary or appropriate under the`'cirn stances to protect public health and
safety or allow for the proper operation of the approved eligible facility consistent with the goals
of this section.
1. Permit term. The City's grant,or graflt y operation of law of an EFP constitutes
a federally-mandated modification to the ::0,10,erlyinwtieiiiiiilAbproval or other prior regulatory
authorization for the subject tower or base` tatiol pursuant to Section 6409, for ten years,
subject to the following provisions.;.::..The City's grant or grant by operation of law of an EFP will
not extend the term, if any, fora rdipisterial per it or other underlying prior regulatory permit,
approval or other authorization Acco# ngly, the t €:n for an EFP approval shall be coterminous
with the ministerial permit>lland other' underlying ermit, approval or other prior regulatory
authorization for the subject tower or base station. This condition shall not be applied or
interpreted in any way tliat'would cause the term of the underlying permit for the modified facility
to be less than ten years it''tittal length, unless such underlying permit is abandoned or revoked
pursuant to this code or any othprovision of federal or state law.
2. Aecelerare >ap: roval teiis due to invalidation. In the event that any court of
competent jurisdiction invalidates any portion of Section 6409 or any FCC rule that interprets
Section 6409 such that federal l w would not mandate approval for any eligible facilities request
pursuant to Section 6409, such. EFP approval shall automatically expire one year from the
effective date ;:€f ;the judicial order, unless the decision would not authorize accelerated
termination of any':previously approved EFP or the Director grants an extension upon written
request from the permittee!that shows good cause for the extension, which includes without
limitation extreme finaridiaitiardship. Notwithstanding anything in the previous sentence to the
contrary, the Director may not grant a permanent exemption or indefinite extension. A permittee
shall not be required to remove any equipment, components, structures and improvements
approved under the invalidated EFP approval when it has submitted an application for either a
SWFP or AWCFP under Section 6.10.070 for those WCFs before the one-year period ends. If
I
Exhibit B - Page 38
Ordinance No. 1673
the SWFP or AWCFP is denied, the permittee shall remove all its equipment, components,
structures and improvements before the one-year period ends.
3. No waiver of standing. The approval of an EFP (either by express approval or by
operation of law) 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 and/or any eligible
facilities approval pursuant to Section 6409 (whether by the approval authority or by operation of
law).
4. Strict compliance with approved plans. Any application filed by the permittee for
a ministerial permit to construct or install the eligible facilitapproved by an EFP must
incorporate the EFP approval, all conditions associated with tl, 'EFPapproval and the approved
photo simulations into the project plans (the "approved plans"). The permittee must construct,
install and operate the eligible facility in strict compliance with the poved 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 eligible
facility, must be submitted in a written request.subject to ,the Director's prior review and
approval, who may revoke the EFP approval if the Director finds that the requested alteration,
modification or other change may cause a substantial changeas that term is defined by Section
6409 or the FCC in 47 C.F.R. Section 1.40001(b)(7), as maybe re-numbered or amended.
5. Build-out period. The EFP. approval will automatically expire one year from the
EFP approval or deemed-granted date;t,rtf. $ the., permittee obtains all other permits and
approvals required to install, construct' nd/or op r thhe.,approved eligible facility, which
include without limitation any City ministerialermit,::a d'ary'li ft�er permits or approvals required
by any federal, state or other local public age01,p§ ith jurisdiction over the subject property, the
eligible facility or its use. The Director may grantone written extension to a date certain when
the permittee shows good cause cp0g4t t ;extend tliCjimitations period in a written request for an
extension submitted at leas <ihirty ( 0) days per, to the automatic expiration date in this
condition.
4",5
6. Maintenance; obligalripris."-`ver c#2 iism. The permittee shall keep the site, which
includes without limitation any and all improvements, equipment, structures, access routes,
fences and landscape feature; Ti{n;.. a neat, clean and safe condition in accordance with the
approved plans„Alt aH o editions''in he EFP approval. The permittee shall keep the site area
free from all lite and debr[s:at all times >The permittee, at no cost to the city, shall remove and
remediate any:€:graffiti or other<aa.ndalism at the site within 48 hours after the permittee receives
notice or otherwise becomesare that such graffiti or other vandalism occurred. Each year
after the permittee installs the wireless facility, the permittee shall submit a written report to the
director, in a fioirn acceptable tO4lie director, that documents the then-current site condition.
7. Property maintenance. The permittee shall ensure that all equipment and other
improvements to be cOhltructed and/or installed in connection with the approved plans are
maintained in a manner that is not detrimental or injurious to the public health, safety, and
general welfare and that the aesthetic appearance is continuously preserved, and substantially
the same as shown in the approved plans at all times relevant to the EFP. The permittee further
Exhibit B - Page 39
Ordinance No. 1673
acknowledges that failure to maintain compliance with this condition may result in a code
enforcement action.
8. 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 eligible facility or any use or
activities in connection with the use authorized in the EFP approval. The permittee expressly
acknowledges and agrees that this obligation is intended to be broadly construed and that no
other specific requirements in these conditions are intended to reduce, relieve or otherwise
lessen the permittee's obligations to maintain compliance with all taws. In the event that the
City fails to timely notice, prompt or enforce compliance with::an ;,applicable provision in the
Code, any permit, any permit condition or any Governing Laws, the applicant or permittee will
not be relieved from its obligation to comply in all respects;with all apIieable provisions in the
Code, any permit, any permit condition or any Governing Laws.
9. Adverse impacts on other propertie5.i.iThe permittee shall use all reasonable
efforts to avoid any and all undue or unnecessary; dierse 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 a:ptiVities at the site. Impacts of radio
frequency emissions on the environment, to the extent that''such emissions are compliant with
all Governing Laws, are not "adverse impacts" for the purposes of this condition. The permittee
shall not perform or cause others ta: .perform any coi istr'uction, installation, operation,
modification, maintenance, repair, removal of other. work thatiiffiVolves heavy equipment or
machines except during normal constructit3o hours Guth €zed by the 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 akpmatency declared by the city. The director or
the director's designee may issue>a.:stop work tder for any activities that violate this condition.
10. Inspections - ennergenoies. The permittee expressly acknowledges and agrees
that the City's officers, officials, staff Cir other designee may enter onto the site and inspect the
improvements and equipment upon;reospipa 1 prior notice to the permittee; provided, however,
that the City's officers, b cials, staff or other'designee may, but will not be obligated to, enter
onto the site area without prion notice to support, repair, disable or remove any improvements or
equipment in emergencies t r when such improvements or equipment threatens actual,
imminent harmproperty or person,: The permittee will be permitted to supervise the City's
officers, officials.staff or oth r:,designee while any such inspection or emergency access occurs.
Permittee's contact information. The permittee shall furnish the Department with
accurate a3d ,up-to-date conta ' iiinformation for a person responsible for the eligible facility,
which includes;without limita'tloti such person's full name, title, direct telephone number,
facsimile number mailing adess and email address. The permittee shall keep such contact
information up-to-date at::::.Ilii imes and immediately provide the Director with updated contact
information in the evenftait either the responsible person or such person's contact information
changes.
12. Indemnification.
Exhibit B - Page 40
Ordinance No. 1673
a. The permittee, and if applicable, the property owner of the property upon
which the eligible facility is installed in the PROW, shall agree in writing to defend, indemnify,
protect and hold harmless City, its elected and appointed officials, officers, boards,
commissions, agents, consultants, employees, volunteers and independent contractors serving
as City officials (collectively "Indemnitees"), from and against any and all claims, actions, or
proceeding against the Indemnitees or any of them, to attack, set aside, void or annul, an
approval of the Director or City Council concerning the EFP and the construction, operation,
maintenance and/or repair of the eligible facility. Such indemnification shall include damages,
judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited
to, interest, reasonable attorneys' fees and expert witness fees, or!tiability of any kind related to
or arising from such claim, action, or proceeding. The permittee;i0pctif applicable, the property
owner of the property upon which the eligible facility is installed n t e PROW, shall also agree
not to sue or seek any money or damages from the City: n connec gft*ith the grant of the
permit and also agree to abide by the City's ordinances and other laws. •T ity shall promptly
notify the permittee and property owner (if any) of any claim, action, or proceeding. Nothing
contained herein shall prohibit City from participating: in a defense of any claim, action or
proceeding. The City shall have the option of coordinating:the defense, including, but not
limited to, choosing counsel for the defense at the ;tmittee's:ex{pense.
b. Additionally, to the fullest extent Whiitted by law, the permittee, and
every permittee and person in a shared permit, jointly ,ar1t 'severally, shall defend, indemnify,
protect and hold the City and its elected and appointed officials,:officers, boards, commissions,
agents, consultants, employees and vc lufltee(e harmless from end against all claims, suits,
demands, actions, losses, liabilities, judgrtr nts, settien)eh#.s:.costs (including, but not limited to,
attorney's fees, interest and expert witnesa'fees), Qf: anlages claimed by third parties against
the City for any injury claim, and for property p ge sustained by any person, arising out of,
resulting from, or are in any way related to the ' or to any work done by or use of the PROW
by the permittee, owner or operator Of the EFP pr their agents, excepting only liability arising
out of the sole negligence `to` willful isconduct bf the City and its elected and appointed
officials, officers, boards,, commissions, agents, consultants, employees and volunteers and
independent contractors serving as City officials
13. Performance: Si. Prior to issuance of any ministerial permit, the permittee
shall pay for and provide a penance bond or other form of security that complies with the
following minimum requirements
a. The security shall be in effect until the eligible facility is fully and
completely removed and the `site reasonably returned to its original condition, to cover the
removal ccstsof the eligible fa €iity in the event that its use is abandoned or the approval is
otherwise term[riated.
b. The,:security shall be in a format and amount approved by the Director
and City Attorney's office.IThe amount of security shall be as determined by the Director to be
necessary to ensure proper completion of the removal of the eligible facility. In establishing the
amount of the security, the Director shall take into consideration information provided by the
applicant regarding the cost of removal. The amount of the security instrument shall be
calculated by the applicant as part of its application in an amount rationally related to the
Exhibit B - Page 41
Ordinance No. 1673
obligations covered by the security instrument. The permittee shall be required to submit the
approved security instrument to the Director prior to issuance of any ministerial for the proposed
eligible facility.
c. Security shall always be imposed if the eligible facility is located in a
PROW adjacent to any residentially zoned property or residential uses.
14. Insurance. The permittee shall obtain, pay for and:<:maintain, in full force and
effect until the WCF approved by the permit is removed in its entirety from the PROW, an
insurance policy or policies of public liability insurance which shallfbe in the form and substance
satisfactory to the City, and shall be maintained until the term gfppermit ended and the WCF
is removed from the PROW. The insurance shall comply with.;t ie m ininum limits and coverages
and provisions set forth in the rules and guidelines, and as'otherwiseablished from time to
time by the City, and which fully protect the City from claims and suits ft tbbodily injury, death,
and property damage.
15. Indemnification. ;€ K
;iiia>'y
a. The permittee shall agree m vuritingt defend, indemnify, protect and hold
harmless City, its elected and appointed officials,' offs, boards, commissions, agents,
consultants, employees, volunteers and independent ihtractors serving as City officials
(collectively "Indemnitees"), from and against any and all clas,;actions, or proceeding against
the Indemnitees or any of them, to attackvOet aside, void or annul :an approval of the Director or
City Council concerning the permit and the;constr€ ti€3ti operation, maintenance and/or repair
of the WCF. Such indemnification shall include dati1ages .judgments, settlements, penalties,
fines, defensive costs or expenses, including but not limited to, interest, reasonable attorneys'
fees and expert witness fees, or liability of anyaii related to or arising from such claim, action,
or proceeding. The permittee thafl also agree' otto sue or seek any money or damages from
the City in connection with;:the grant;of the permit and also agree to abide by the City's
ordinances and other lawgiiiiiThe City s all promptly ,notify the permittee of any claim, action, or
proceeding. Nothing contained herein herpshishat prOjoifprohibit City from participating in a defense of any
claim, action or proceeding. The City.:shaft have the option of coordinating the defense,
including, but not limited to Olvq$1ng counsel for the defense at the permittee's expense.
b.: ' Add#tionally to,;the fullest extent permitted by law, the permittee, and
every permitte >and person;to a shared permit, jointly and severally, shall defend, indemnify,
protect and ti €d the City and its;elected and appointed officials, officers, boards, commissions,
agents, consultants, employee and volunteers harmless from and against all claims, suits,
demands, actions, losses, liabiliti s, judgments, settlements, costs (including, but not limited to,
attorney's fees, ',ii)terest and expert witness fees), or damages claimed by third parties against
the City for any injury claim,,# d for property damage sustained by any person, arising out of,
resulting from, or areiin any way related to the WCF, or to any work done by or use of the
PROW by the permittee owner or operator of the WCF, or their agents, excepting only liability
arising out of the sole negligence or willful misconduct of the City and its elected and appointed
officials, officers, boards, commissions, agents, consultants, employees and volunteers and
independent contractors serving as City officials.
I
Exhibit B - Page 42
I
Ordinance No. 1673
16. Acceptance of conditions. The EFP shall not become effective for any purpose
unless/until a City "Acceptance of Conditions" form, in a form approved by the City Attorney's
office, has been signed and notarized by the applicant/permittee before being returned to the
Director; and until the ten-day appeal period has elapsed. The permit shall be void and of no
force or effect unless such written agreement is received by the City within said ten-day appeal
period.
H. Operation and Maintenance Standards. The permittee shall comply with all operations
and maintenance standards set forth in Section 6.10.070.0 of thishapter and the rules and
guidelines adopted by resolution of the City Council.
I. Additional Requirements. All eligible facilities (includint of g ble; facilities granted by the
City and eligible facilities requests granted by operation of I ) shall comply with and be subject
to all of the following provisions of Section 6.10.070 of thichapter.
1. Section 6.10.070.G(b), (c) and (d) (locational restrictions).
2. Section 6.10.070.L: Nonexclusive grant.
3. Section 6.10.070.M: Business License
4. Section 6.10.070.P: Radio Frequency (RF) Emissions and Other Monitoring
Requirements
•
5. Section 6.10.070.Q: No Dangerous COndititittopObstructions Allowed.
6. Section 6.10.070.R: Permit Exprs dfi.
7. Section 6.10.070 S: C ,' ation of Lf*or Abandonment.
•8. Section 6.4.V. 70.T: Rev`).cation r...;Modification; Removal.
9. Section 6.11:0q yEffect on Other Ordinances.
10. Section 6:10.070'11>State or Federal Law.
11. Section 6.10.070,X: Nonconforming Wireless Communications Facilities.
Exhibit B - Page 43