WTF = Wireless Telecommunications Facility
sWTF = so-called “small” Wireless Telecommunications Facility
RF-EMR = RF Electromagnetic Microwave Radiation
City of Santa Barbara’s Explanation:
Final Draft so-called “Small” Wireless Telecommunications Facilities Ordinance
On July 1, 2021 the City of Santa Barbara (“SB””) released the final draft_xxx of the Small Wireless Facilities Ordinance, which will be presented to the Ordinance Committee on July 27, 2021 for review and [a vote for disapproval or] approval and then forwarded to the City Council.
[The SB’s City Attorney’s office claims that] the Ordinance
- upholds the community’s interest in protecting the City of Santa Barbara’s visual character and
- contains safety considerations, while at the same time, follows Federal Communications Commission regulations that preempts local zoning discretion.
Wire-USA: But does the Ordinance, as it is written, do anything effective to deliver actual public safety or protect SB’s quiet enjoyment of streets? A careful reading of the text below shows that it does not. There is no recognition in the SB-WTF Ordinance that the contemplated so-called “small” Wireless Telecommunications Facilities (sWTFs) are not small enough in dimension, power consumption or power output (as measured by Signal Strength in decibel-Milliwatts or dBm). There is also no recognition of the requirement to retrofit the currently 300+ sWTFs installed throughout SB to be retrofitted to use only the minimum amount of power for the communication desired, per the 1996 Telecommunications Act (“1996-TCA”):
47 U.S. Code §324 – Use of Minimum Power:
“In all circumstances . . . all radio stations. . . shall use the minimum amount of power necessary to carry out the communication desired.”
The first draft of the Ordinance was released on December 1, 2020, for public review and comment. The City received dozens of comments proposing some changes to the Ordinance. Most of the public comment received has been listed in an attached matrix chart that also provides information on whether the changes were adopted and a brief description as to the basis for the determination.
The Ordinance regulates the placement of Small Wireless Facilities in the public rights-of-way and establishes reasonable and comprehensive standards and procedures as to aesthetics, construction, operation, modification, and removal, for small cell permitting within the City. The regulations also outline the requirements for Small Wireless Facilities application and installation procedures, establishes the City’s location preferences and design standards, and lays out the public notification procedures and appeal process.
Wire-USA: This SB-WTF Ordinance, below, does not reflect an understanding key CA Supreme Court and US Courts of Appeals Rulings from 2005–2020:
- 2005 Ruling in 9th Circuit Case No. 03-16759 — Metro PCS v San Francisco
- 2008 Ruling in 9th Circuit Case No. 05-56076 — Sprint v San Diego
- 2019 Ruling in DC Circuit Case No. 18-1129 — Keetoowah, et al. v FCC
- 2019 Ruling in DC Circuit Case No. 18-1051 — Mozilla et al. v FCC
- 2020 Ruling in DC Circuit Case No. 19-1085 — IRREGULATORS, et al. v FCC
- 2019 Ruling in CA Supreme Court Case No. S238001 — T-Mobile v San Francisco
- 2020 Ruling in 9th Circuit Case No. 18-72689 — City of Portland. v. FCC
There are also other pending key events that must be considered before voting on this SB-WTF Ordinance:
- The current deliberations at the CA Senate re: CA’s 2021 Triple Threat of Wireless Telecom Bills: SB.556, AB.537 & SB.378
- The impending ruling (expected in July/Aug 2021) in Case No. 20-1025, Environmental Health Trust, et al., v. FCC re: Targeted: Changes to the FCC Rules Regarding Human Exposure to RF Electromagnetic Microwave Radiation (RF-EMR)
- The recently filed lawsuit the CA Senate re: CA’s 2021 Triple Threat of Wireless Telecom Bills: SB.556, AB.537 & SB.378
Per Andrew Campanelli, Esq.,it has already been ruled in least two federal courts that:
- “United States District Courts sitting in New York are bound to follow the States Court of Appeals’ interpretation of the “effective prohibition” language of the 1996-TCA, and not the FCC’s attempt to reinterpret the very same language within the 1996-TCA ; and
- Just because Congress has not updated the 1996-TCA to keep up with changing technology, it is not up to the FCC to construe the 1996-TCA to say something it does not say.”
The same thing applies in the U.S. Court of Appeals for the Ninth Circuit, which has ruled that a locality could violate the 1996-TCA’s effective prohibition clause if it prevented a wireless provider from closing a “significant gap” in service coverage. Such a claim generally “involves a two-pronged analysis (1) the showing of a ‘significant gap’ in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations.” The “effective prohibition” clause in the 1996-TCA is not affected by the FCC Orders from 2018.
Also, the US Supreme Court in its 2005 ruling in Palos Verdes v Abrams anointed the 1996-TCA Conference Report (H. R. Rep. No. 104-204) as the authoritative source of Congressional intent of the 1996 TCA:
“The conference agreement creates a new section 704 which prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters . . . When utilizing the term ‘functionally equivalent services’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another . . . will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently . . . For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”
Santa Barbara Small Wireless Facilities Draft Ordinance Final Version (4,766 KB)
Santa Barbara Small Wireless Facilities Ord Comment Matrix Final (136 KB)
Public Comment Invited On Draft Small Wireless Facilities Ordinance
On December 1, 2020, the City released the Draft Small Wireless Facilities Ordinance for public comment. Written comments are invited and will be accepted through January 15, 2021. Please direct written comments or questions to Assistant City Attorney John Doimas at jdoimas@SantaBarbaraCA.gov
A copy of the proposed ordinance is available for download HERE.
The purpose of this Ordinance is to regulate the installation, operation, and maintenance of small wireless telecommunication facilities (“SWF”) on property or structures owned or controlled by the City. This Ordinance does not regulate SWF installations on private property. The City recognizes that the unrestricted installation of redundant wireless telecommunication facilities is contrary to the City’s efforts to stabilize to promote safety and aesthetic considerations and a basic residential character within the city.
Wire-USA: Beware of wireles industry propaganda that infuses the writings of the SB City Attorney’s office.
The following is SB’s brief description of some major provisions contained in the Ordinance:
- Preferred Location and Discouraged Location provisions that require SWFs to be installed in locations, ordered from most preferred to least preferred located. In addition, SWFs cannot be installed in a Discouraged Location unless no alternative site in a Preferred Location would be technically feasible. These provisions encourage the installation and operation of wireless telecommunication facilities where they are needed, while reducing, to the greatest extent feasible, adverse safety and aesthetic impacts on nearby properties and the community as a whole.
- The proposed Ordinance also contains a Support Structure Preference, which requires SWFs in the public rights-of-way to be installed on support structures, ordered from most preferred to least preferred. For example, existing streetlights would be fall under most preferred while decorative poles would be least preferred.
- All SWFs installed on City property/structures require a permit issued by the Public Works Department. As part of the Permit application process, the Ordinance contains provisions for a Voluntary Pre-Submittal Conference with City staff to discuss concerns involving the proposed SWF, such as compliance with generally applicable rules for public health and safety and potential concealment issues. The Ordinance also encourages applicants to notice and schedule Community Meetings. This voluntary pre-submittal public meeting is intended to give applicants the opportunity to hear from members of the public regarding any proposed deployment of a SWF.
- The proposed Ordinance contains specific findings the Public Works Department must make in approving a permit application such as: Complying with all applicable design standards and compatibility with the character of the area; Compliance with all applicable location standards; That the proposed SWF is consistent with the General Plan; and that the proposed SWF is in compliance with all applicable FCC regulations and guidelines for human exposure to RF emissions.
- The proposed Ordinance also contains design standards that focus on concealment and finishes in order to blend in with the surrounding area and that the SWF must be compliant with City noise regulations.
- In order to expedite the review process and encourage collaborative designs among applicants, the proposed Ordinance contains a preapproved design standard that the City will develop. The City also has the ability to repeal a preapproved design and substitute a new one in the future as the technology changes.
- The proposed Ordinance contains an Indemnification provision and Insurance requirement for all applicants that holds the City harmless and requires the maintenance of insurance on an occurrence basis, with limits set at no less than $1,000,000 per occurrence or $2,000,000 in the aggregate.
- The proposed Ordinance contains the ability for interested persons(s) to appeal the issuance of a permit for a SWF to City Council. The issues on appeal are strictly limited, for example, an individual can only appeal that the radio frequency emissions do not comply with the standards under FCC order or can only appeal if the aesthetics of the design do not meet the standards under the ordinance.
PROPOSED ORDINANCE OF THE COUNCIL OF THE CITY OF SANTA BARBARA
AMENDING THE SANTA BARBARA MUNICIPAL CODE
BY THE ADDITION OF CHAPTER 9.170 PERTAINING TO
SO-CALLED “SMALL” WIRELESS TELECOMMUNICATIONS FACILITIES
THE CITY COUNCIL OF THE CITY OF SANTA BARBARA DOES ORDAIN AS FOLLOWS:
Wire-USA: See Wire America™ annotations in green boxes, like this and recommended additions and
subtractions in the ordinance’s text.
Title 9 of the Santa Barbara Municipal Code is amended by adding Chapter 9.170 which reads as follows:
9.170.010 Background and Introduction.
In 1996, Congress adopted the Telecommunications Act to balance the national interest in
advanced communications telecommunications services and infrastructure with legitimate local government authority to enforce zoning and other regulations to manage infrastructure deployments on private property and in the public rights-of-way. Under Section 704, which applies to personal wireless service facilities, local governments retain all their traditional zoning authority subject to specifically enumerated limitations. Section 253 preempts local regulations that prohibit or effectively prohibit telecommunication services (i.e., common carrier services) except competitively neutral and nondiscriminatory regulations to manage the public rights-of-way and require fair and reasonable compensation.
Communication technologies have significantly changed since 1996, but the federal telecommunications laws have not changed significantly — adding only the very brief 2012 Spectrum Act — §6409(a):
47 U.S. Code § 1455 (a) Facility modifications
(1) In general. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
(2) Eligible facilities request. For purposes of this subsection, the term “eligible facilities request” means any request for modification of an existing wireless tower or base station that involves—
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
(3) Applicability of environmental laws. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.
Whereas cell sites
were traditionally have been and continue to be deployed on tall towers and rooftops over low frequency bands transmitting pulsed, modulated frequencies from 700 MHz to 2100 MHz that travel long distances, cell sites are now increasingly unnecessarily targeting inexpensive real estate in the public rights of way on utility poles, street lights and other street furniture — placing overpowered wireless antenna large supporting equipment on such property, which are far too large, too powerful and too close to homes and businesses.
Wire-USA: Localities retain their police powers and can use those powers to pass and enforce protective local laws that can neutralize many provisions of the Federal Communications Commission’s overreaching Orders — many of these attempted provisions/rules are beyond the FCC’s authority, which can be adjudicated in the court in as-applied challenges.
According to the Federal Communications Commission (“FCC”) and the wireless industry, these so-called “small wireless facilities” or “small cells” are essential to the next technological evolution. The wireless industry is rapidly densifying their networks with many small cells in the public rights-of-way in addition to the tradition cell sites on towers and rooftops.
On September 27, 2018, the FCC adopted a Declaratory Ruling and Third Report and Order, FCC 18-133 (the “Small Cell Order”), in connection with two informal rulemaking proceedings entitled Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, and Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17-84. In general, the Small Cell Order: (1) restricts the fees and other compensation state and local governments may receive from applicants; (2) requires all aesthetic regulations to be reasonable, no more burdensome than those applied to other infrastructure deployments, objective, and published in advance; (3) mandates that local officials negotiate access agreements, review permit applications, and conduct any appeals within significantly shorter timeframes; and (4) creates new evidentiary presumptions that make it more difficult for local governments to defend themselves if an action or failure to act is challenged in court. The regulations adopted in the Small Cell Order significantly curtail the local authority over wireless and wireline communication facilities reserved to State and local governments under Sections 253 and 704 in the Telecommunications Act.
On August 12, 2020, the United States Court of Appeals for the Ninth Circuit invalidated many aesthetic restrictions in the Small Cell Order but largely upheld the other restrictions. Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). However, as of the date of the ordinance adopting this Chapter, the Ninth Circuit’s decision remains subject to further appeals.
The City of Santa Barbara nevertheless retains “broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction’s borders”, T-Mobile West LLC v. City & County of San Francisco, 438 P.3d 1107 (Cal. 2019), including all zoning powers that are not specifically preempted by federal law, T-Mobile S., LLC v. City of Roswell, 574 U.S. 293 (2015).
9.170.020 Purpose and Intent.
This Chapter is intended to establish reasonable, uniform and comprehensive standards and procedures for small wireless facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the City’s territorial boundaries, consistent with and to the extent permitted under federal and California state law. The standards and procedures contained in this Chapter are intended to, and should be applied to, protect and promote public health, safety and welfare, and balance the benefits that flow from robust, advanced wireless services with the City’s local values, which include without limitation the aesthetic character of the City, its neighborhoods, and community. This Chapter is also intended to reflect and promote the community interest by
(1) ensuring that the balance between public and private interests is maintained;
(2) protecting the City’s visual character from potential adverse impacts or visual blight created or exacerbated by small wireless facilities and related communications infrastructure;
(3) protecting and preserving the City’s environmental resources;
(4) protecting and preserving the City’s public rights-of-way and municipal infrastructure located within the City’s public rights-of-way;
(5) protecting and promoting the City’s residential neighborhoods and other family oriented environments, such as parks, trails and beaches; and
(6) promoting access to high-quality, advanced wireless services for the City’s residents, businesses and visitors.
This Chapter is intended to provide clear procedures for application intake and completeness review. The City Council finds that chronically incomplete applications significantly contribute to unreasonable delay and create barriers to infrastructure deployment. Chronically incomplete applications unfairly prejudice other applicants who may be prepared to submit complete applications for infrastructure in the same or substantially the same location. Chronically incomplete applications also unfairly prejudice the City’s ability to act on such applications within the “presumptively reasonable” timeframes established by the FCC. The provisions in this Chapter afford applicants and City staff opportunities for direct, real-time communication about completeness issues to mitigate incomplete applications prior to submittal. The provisions in this Chapter also encourage applicants to timely respond to incomplete notices.
This Chapter is not intended to, nor shall it be interpreted or applied to:
(1) prohibit or effectively prohibit any personal wireless service provider’s ability to provide personal wireless services;
(2) prohibit or effectively prohibit any entity’s ability to provide any telecommunications service, subject to any competitively neutral and nondiscriminatory rules, regulations or other legal requirements for rights-of-way management;
(3) unreasonably discriminate among providers of functionally equivalent personal wireless services;
(4) deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC’s regulations concerning such emissions;
(5) prohibit any collocation or modification that the City may not deny under federal or California state law;
(6) impose any unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee is charged; or
(7) otherwise authorize the City to preempt any applicable federal or California law.
Commments re: 9.170.030 – DEFINITIONS
Over 30 Comments: Add definition for Lowest Effective Power, per 47 USC § 324, which says “In all circumstances, except in case of communications or signals relating to vessels in distress, all telecommunications facilities shall use the minimum amount of power necessary to carry out the communication desired.
Partially Adopted: This proposal is not appropriate as a definition. It is best implemented as a required affirmation by the permittee in Section 9.170.130.A.24.A. A similar requirement could also be included in the application checklist.
- Q1: Is this a requirement of every Wireless Telecommunications Facilities (WTF) application that will be processed under this SB-WTF Ordinance? If not, why not? There is no magic in this having to be a definition, but the requirement must be there and enforced locally.
- Q2: What is a required affirmation? What kind of teeth does a required affirmation have? Is it sufficient to deny a non-compliant application — an application that does not “use the minimum amount of power necessary to carry out the communication desired”? the applicatin
47 USC § 324 — Use of minimum power say this:
In all circumstances, except in case of radio communications or signals relating to vessels in distress, all radio stations, including those owned and operated by the United States, shall use the minimum amount of power necessary to carry out the communication desired.
The abbreviations, phrases, terms and words used in this Chapter will have the following meanings assigned to them unless context indicates otherwise_xxx. Undefined phrases, terms or words in this Chapter will have their ordinary meanings.
The definitions in this Chapter shall control over conflicting definitions for the same or similar abbreviations, phrases, terms or words as may be defined in the Code_xxx. However, if any definition assigned to any phrase, term or word in this Chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.
A. Accessory equipment. Equipment other than antennas used in connection with a small wireless facility or strand-mounted wireless facility. The term includes “transmission equipment” as defined by the FCC in 47 C.F.R. § 1.6100(b)(8), as may be amended or superseded.
B. Amateur station. The same as defined by the FCC in 47 C.F.R. § 97.3, as may be amended or superseded, which defines the term as “a station in an amateur radio service consisting of the apparatus necessary for carrying on radio communications.” This term includes amateur radio antennas and related facilities used for amateur radio services.
C. Antenna. The same as defined by the FCC in 47 C.F.R. § 1.6002(b), as may be amended or superseded.
D. Approval authority. The City official or body responsible for application review and vested with authority to approve or deny such applications.
E. Batched application. More than one application submitted at the same time.
F. Board. The Architectural Board of Review, the Historic Landmarks Commission, or the Single Family Design Board, as applicable.
G. Caltrans map. The State of California Department of Transportation Map 10U dated August 5, 2011 depicting a functional classification system for roadways within the City of Santa Barbara currently available at https://caltrans.maps.arcgis.com/apps/webappviewer/index.html?id=026e830c914c495797c969a3e5668538.
H.Code.The City of Santa Barbara Municipal Code.
I. Collocation. The same as defined by the FCC in 47 C.F.R. § 1.6002(g), as may be amended or superseded, which defines that term as mounting or installing an antenna facility on a pre-existing structure or modifying a structure for the purpose of mounting or installing an antenna facility on that structure. For clarification, the FCC defines the term “collocation” in two contexts, one for small wireless facilities in 47 C.F.R. § 1.6002(g) and another for requests pursuant to Section 6409 in 47 C.F.R. § 1.6100(b)(2). This Chapter uses the term “collocation” as defined for small wireless facilities unless expressly provided otherwise.
J. CPUC. The California Public Utilities Commission established in the California Constitution, Article XII, § 5, or its duly appointed successor agency.
K. Decorative pole. Any pole that includes decorative or ornamental features, design elements and materials for aesthetic purposes.
L. Department. The City Public Works Department.
M. Director. The Public Works Director or the Director’s designee.
N. Eligible facilities request. The same as defined in 47 U.S.C. § 1455(a)(2), as may be amended or superseded, and as interpreted by the FCC in 47 C.F.R. § 1.6100(b)(3), as may be amended or superseded.
O. FCC. The Federal Communications Commission, as constituted by the Communications Act of 1934, Pub. L: 73-416, 48 Stat. 1064, codified as 47 U.S.C. §§ 151 et seq. or its duly appointed successor agency._xxx
P. Fire safety authority. The Fire Chief, or the Fire Chief’s designee.
Q. Historic resource. The same as defined in Chapter 30.220of the Code.
R. Local street. on the Caltrans map. A roadway identified as functional classification 7 for “local”
S. Major collector. Those roadways identified as functional classification 5 for “major collector” on the Caltrans map.
T. Minor arterial. Those roadways identified as functional classification 4 for “minor arterial” on the Caltrans map.
U. Minor collector. Those roadways identified as functional classification 6 for “minor collector” on the Caltrans map.
V. Non-pole concealment structure. A structure within the public rights-of-way, other than a pole, that can be adapted (either in its current form or through a replacement) to conceal antennas or accessory equipment for small wireless facilities. Examples may include, without limitation, monuments, kiosks, bus shelters and other street furniture.
W. OTARD. Any “over-the-air reception device” subject to 47 C.F.R. §§ 1.4000 et seq., as may be amended or superseded, which generally includes satellite television dishes and certain fixed wireless antennas not greater than one meter in diameter.
X. Personal wireless service facilities. The same as defined in 47 U.S.C. § 332(c)(7)(C)(ii), as may be amended or superseded.
Y. Personal wireless services. The same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended or superseded.
Z. Persons entitled to notice.
(1) all real property owners as shown on the most recent equalized assessment roll within 500 feet from the location where a small wireless facility or strand-mounted wireless facility is proposed; and
(2) all occupants of properties within 500 feet from the location where a small wireless facility or strandmounted wireless facility is proposed. Mailed notice will be deemed given to real property owners when sent to the address listed on the most recent equalized assessment roll. Mailed notice will be deemed given to occupants of real property when sent to the physical address of the real property within 500 feet from the location where a small wireless facility or strand-mounted wireless facility is proposed. If the number of owners and occupants to whom the notice would be mailed or delivered is greater than 1,000, instead of mailed notice, notice may be provided by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation in the City. Generally interested parties who are not a real property owner or occupant of a property within 500 feet from the location where a small wireless facility or strand-mounted wireless facility is proposed may stay informed of pending applications through a City maintained website that contains a list of various applications, any decisions and when and how to appeal such decisions.
AA. Principal arterial. Those roadways identified as functional classification 3 for “other principal arterial” on the Caltrans map.
BB. Prohibited support structure. Any support structure on which the City prohibits the deployment of wireless facilities, except when authorized as a pre-approved design pursuant to this Chapter. Prohibited support structures include decorative poles; traffic signal poles, cabinets or related structures; new, non-replacement wood poles; and any utility pole scheduled for removal within 18 months from the time the Director acts on the application for such pole.
CC. Public right-of-way or public rights-of-way. Land or an interest in land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for or dedicated to or open to the use by the general public for road or highway purposes. The term does not include private or public utility easements unless such easement is reserved for or dedicated to or open to the use by the general public for road or highway purposes.
DD.RF. Radio frequency.
EE. Section 6409. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. § 1455(a), as may be amended.
FF. Shot clock. The ** ** defined by the FCC in which a state or local government must act on an application or request for authorization to place, construct or modify personal wireless service facilities.
GG. State highway. Those roadways identified as functional classification 2 for “other freeway or expressway” on the Caltrans map.
A. General. This Chapter applies to all requests for the City’s regulatory authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy small wireless facilities within the public rights-of-way within the City’s territorial and jurisdictional boundaries, unless expressly exempted pursuant to this Section 9.170.040.
B. Strand-Mounted Wireless Facilities. To the extent that strand-mounted wireless facilities involve the same or substantially similar structures, apparatus, antennas, equipment, fixtures, cabinets, cables or improvements as small wireless facilities, the Director or other official responsible to review and approve or deny requests for the City’s regulatory authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy such strand-mounted wireless facilities within the public rights-of-way within the City shall apply the provisions in this Chapter unless expressly exempted pursuant to this Section 9.170.040 or unless specifically prohibited by applicable law.
C. Wireless Facilities on City Property. This Chapter applies to permit applications for small wireless facilities and strand-mounted wireless facilities on property or structures owned or controlled by the City; provided, however, that this Chapter does not govern whether or under what terms and conditions the City would lease, license or otherwise allow a small wireless facility or a strand-mounted wireless facility on such property or structures.
D. Eligible Facilities Requests. Notwithstanding anything in this Chapter to the contrary, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 are subject to a permit and shall be processed pursuant to this Chapter.
E. Other Exemptions. Notwithstanding anything in this Chapter to the contrary, a Small Cell Facility Permit shall not be required for the following:
- Wireless facilities operated by the City for public purposes;
- Small wireless facilities installed completely indoors and used to extend personal wireless services into a business or the subscriber’s private residence, such as a femto cell or indoor distributed antenna system;
- Antennas and related transmission equipment used in connection with a duly authorized amateur station;
- Wireless facilities or other transmission equipment owned and operated by CPUC-regulated electric or natural gas companies for use in connection with electrical or natural gas power, generation, transmission and distribution facilities subject to CPUC General Order 131-D or similar CPUC authority;
9.170.050 Required Permits and Approvals.
A. Small Cell Facility Permit. Unless exempt pursuant to Section 9.170.040 (d), a Small Cell Facility Permit, subject to the Director’s prior review and approval, is required for all small wireless facilities and all strand-mounted wireless facilities.
B. Other Permits and Approvals. In addition to any permit or approval required under this Chapter , the applicant must obtain all other permits and regulatory approvals (such as compliance with the California Environmental Quality Act) as may be required by any other federal, state, regional or local government agencies, which includes without limitation any permits or approvals issued by other City departments or divisions. Furthermore, any permit or approval granted under this Chapter or deemed granted or deemed approved by law shall remain subject to any and all lawful conditions and legal requirements associated with such other permits or approvals.
9.170.060 Administrative Orders and Regulations.
In addition to the requirements in this Chapter, the Director may adopt such orders or regulations as the Director deems necessary or appropriate to protect and maintain public health, safety, welfare and convenience. All small wireless facilities and strandmounted wireless facilities must conform to all applicable orders and regulations issued by the Director, unless the Director, in the Director’s discretion, grants a prior written waiver to deviate, in whole or in part, any such order or regulation. Waivers by the Director shall be considered and approved or denied on a competitively neutral and nondiscriminatory basis. The Director shall develop and publish guidelines to implement the waivers authorized by this section.
9.170.070 Permit Applications.
A. Application Required. The Director shall not approve any requests for authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy small wireless facilities or strand-mounted wireless facilities except upon a complete and duly filed application consistent with this section and any other written rules or requirements the City or the Director may establish from time to time in any publicly-stated format.
B. Application Fee. The applicant shall submit the applicable permit application fee adopted by City Council resolution. Batched applications must include the permit application fee for each small wireless facility or strand-mounted wireless facility in the batch.
C. Application Content. All applications for a permit must include all the information and materials required by the Director for the application. The City Council authorizes the Director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Director finds necessary, appropriate or useful for processing any application governed under this Chapter. All such requirements must be in written form and publicly stated to provide applicants with prior notice. Notwithstanding anything in this Chapter to the contrary, all applications shall, at a minimum, require the applicant to demonstrate that the proposed project will be in planned compliance with all applicable health and safety laws, regulations or other rules, which includes without limitation all building codes, electric codes and all FCC rules for human exposure to RF emissions. Additionally, the application shall include an analysis about whether the proposed facilities will add new coverage where there is none, or add service capacity in an area with existing coverage, or both, and technical objectives including but not limited to propagation maps, best server plots or other objective, factual data to support the claims by the applicant about the purpose of the proposed facility. All applications shall also include confirmation that an environmental assessment, or other application determination, has been completed by or on behalf of the FCC for any facility proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as otherwise required by National Environmental Policy Act.
D. Application Submittal. Unless the Director establishes an alternative submittal procedure pursuant to 9.170.060, all applications must be submitted to the City at a pre-scheduled appointment with the Department. Applicants may submit one application per small wireless facility or strand-mounted wireless facility up to a maximum of five separate applications for small wireless facilities or strand-mounted wireless facilities together as a batched application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The Department shall use reasonable efforts to provide the applicant with an appointment within five working days after the department receives a written request. Any application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed.
E. Voluntary Pre-Submittal Conference. The Department shall provide prospective applicants with the opportunity to schedule and attend a pre-submittal conference with department staff. The City encourages pre-submittal conferences for all applications. The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification and review process, any latent issues in connection with the proposed or existing small wireless facility or strand-mounted wireless facility, such as compliance with generally applicable rules for public health and safety; potential stealth or concealment issues or concerns (if applicable); coordination with other City departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that City staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The Department shall use reasonable efforts to provide the applicant with an appointment within five working days after receiving a written request and any applicable fee or deposit to reimburse the City for its reasonable costs to provide the services rendered in the pre-submittal conference.
F. Community Meetings. The City requires applicants to cooperate with scheduling, assist the City with noticing and attend an annual community meeting with all interested members of the public. This annual public meeting is intended to: (1) inform the public about what proposed deployments are coming from the applicants; (2) provide construction updates from the applicants about previously approved applications; (3) allow the public to provide comments, questions and feedback to the applicants about such proposed deployments and previously approved applications; and (4) facilitate meaningful dialogue between applicants and the public about the foregoing. The City desires to encourage such meaningful dialogue to allow applicants to voluntarily address areas of concern to the public, which in turn may lessen the likelihood of appeals of the Director’s decision on an application to the City Council. Applicants are encouraged to bring any draft applications, plans, maps, presentations or other materials to facilitate meaningful dialogue with the public and increase the public’s understanding of the deployments. There will be no formal action taken by the City at this community meeting. City staff will make a recording or record of the community meeting available to the public. Public notice for a community meeting will be provided on the City’s website and to those interested persons as requested.
G. Applications Deemed Withdrawn. To promote efficient review and timely decisions, any application governed under this Chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the department within 90 calendar days after the department deems the application incomplete in a written notice to the applicant. The Director, in the Director’s discretion, may grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 90th day that shows good cause to grant the extension. Good cause for an extension shall include, without limitation, delays due to circumstances outside the applicant’s reasonable control.
H. Peer and Independent Consultant Review. The City Council authorizes the Director to, in the Director’s discretion, select and retain an independent consultant with specialized training, experience and expertise in telecommunications issues satisfactory to the Director in connection any permit application. The Director may request an independent consultant review on any issue that involves specialized or expert knowledge in connection with wireless facilities deployment or permit applications for wireless facilities, which include without limitation: (1) permit application completeness and accuracy; (2) pre-construction planned compliance with applicable regulations for human exposure to RF emissions; (3) post-construction actual compliance with applicable regulations for human exposure to RF emissions; (4) whether and to what extent a proposed project will comply with applicable laws; (5) the applicability, reliability and sufficiency of any information, analyses or methodologies used by the applicant to reach any conclusions about any issue with the City’s discretion to review; and (6) any other issue identified by the Director that requires expert or specialized knowledge. The Director may request that the independent consultant prepare written reports, testify at public meetings, hearings and appeals and attend meetings with City staff and the applicant. Subject to applicable law, in the event that the Director elects to retain an independent consultant in connection with any permit application, the applicant shall be responsible for the reasonable costs in connection with the services provided, which may include without limitation any costs incurred by the independent consultant to attend and participate in any meetings or hearings. Before the independent consultant may perform any services, the applicant shall tender to the City a deposit in an amount equal to the estimated cost for the services to be provided, as determined by the Director. The Director may request additional deposits as reasonably necessary to ensure sufficient funds are available to cover the reasonable costs in connection with the independent consultant’s services. If the deposit exceeds the total costs for consultant’s services, the Director shall promptly return any unused funds to the applicant after the wireless facility has been installed and passes a final inspection by the Director or his or her designee. If the reasonable costs for the independent consultant’s services exceed the deposit, the Director shall invoice the applicant for the balance. The City shall not issue any building permit or encroachment permit to any applicant with any unpaid invoices.
9.170.080 Public Notice.
A. Posted Notice. Within five business days after an application is duly filed with the department, the applicant shall: (1) post notice on the proposed project site in a location near to and visible from the public rights-of-way and (2) provide the department with evidence that such notice has been posted. The applicant is responsible for maintaining and replacing the sign as necessary during the duration of the application review process until the Director acts on the application and all appeals have been exhausted. The sign shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for the duration of the notice period. The sign shall be at least two feet wide by three feet tall. The sign shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the public rights-of-way. The City encourages applicants to consult with the Department on placement locations to avoid any potential hazards. In addition to the content requirements in 9.170.080, the posted notice shall include a URL for the City’s website page where application information can be obtained once uploaded in accordance with 9.170.080(b).
B. Application Submittal Notice. Within approximately 10 calendar days after an application is received and before any approval or denial, the department shall: (1) mail public notice to all persons entitled to notice and (2) post public notice on the City’s website. In addition to the general requirements in 9.170.080(d), public notices required under this 9.170.080(b) shall include information about when and how interested parties may file an appeal from a decision by the Director.
C. Public Hearing Notice. At least 10 calendar days before a public hearing to consider an appeal, the department shall: (1) mail public notice to all persons entitled to notice and (2) publish notice in at least one newspaper of general circulation within the City. In addition to the general requirements in 9.170.080(d), public notices required under this 9.170.080(c) shall include the date, time and location for the public hearing and the URL to the project webpage on the City’s website. The agenda for the public hearing shall contain a URL for any video conference options.
D. Public Notice Content. In addition to any other requirements, all notices required under 9.170.080(a), (b) and (c) shall include: (1) a general project description with photo simulations; (2) the applicant’s identification and contact information as provided on the application submitted to the City; (3) contact information for the department for interested parties to submit comments; and (4) a statement as to whether a public hearing will be required for the application or not.
E. Decision Notices. Within five calendar days after the Director acts on an application governed under this Chapter or before the shot clock expires (whichever occurs first), the Director shall send a written notice to the applicant and all persons entitled to notice and shall post public notice on the City’s website. If the Director denies the application (with or without prejudice), the written notice to the applicant must contain (1) the reasons for the denial and (2) instructions for how and when to file an appeal.
9.170.090 Approvals, Denials and Appeals.
A. Initial Administrative Decision. After having considered all timely received public comments on the application, the Director shall approve, conditionally approve or deny a complete and duly filed permit application without a public hearing. To allow interested persons with a meaningful opportunity to appeal the Director’s decision, the Director shall act within 29 shot clock days from a duly filed application.
B. Required Findings for Approval. The Director may approve an application only when the Director makes all the following findings:
- The proposed project meets the definition for a “small wireless facility” as defined by the FCC or otherwise is a qualifying strand-mounted wireless facility pursuant to Section 9.170.040(c);
- The proposed project complies with all applicable design standards in this Chapter and is compatible with the character of the area;
- in this Chapter; The proposed project complies with all applicable location standards
- The proposed project would not be located on a prohibited support structure identified in this Chapter;
- The proposed project is essential to or desirable for the public convenience or welfare;
- The proposed project, including without limitation its appearance and operation, would not be materially adverse to public peace, health, safety, comfort or general welfare, and will not materially affect property values in the neighborhood;
- The proposed project is consistent with the General Plan and any applicable specific plan, and would not be materially detrimental to the use of surrounding properties or improvements;
- The applicant has demonstrated that the proposed project will be in planned compliance with all applicable FCC regulations and guidelines for human exposure to RF emissions; and
- The applicant has provided confirmation that an environmental assessment, or other application determination, has been completed by or on behalf of the FCC for any facility proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as otherwise required by National Environmental Policy Act; and
- All public notices required for the application have been given.
C. Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or state laws, nothing in this Chapter is intended to limit the Director’s ability to conditionally approve or deny without prejudice any application governed under this Policy as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in the general plan and any applicable specific plan, the Code and this Chapter.
D. Appeals. Any interested person may appeal the decision to the City Council pursuant to the procedures in Chapter 1.30 of the Code, except that 1.30.050 of the Code is modified for the purposes of this Section to provide that: (i) an appeal notice must be filed with the City Clerk within seven calendar days from the date of the Director’s decision. The notice must contain a short and plain statement about the basis for the appeal, which may be supplemented after the notice period has expired but before the appeal hearing; (ii) appeals from an approval shall not be permitted when based on reasons otherwise compliant under this Chapter, including appeals based on duly adopted pre-approved designs or the environmental effects from RF emissions that are compliant with applicable FCC regulations and guidelines; and (iii) the City Council shall hear appeals de novo and issue the applicant and any person entitled to notice a written decision within five calendar days after the appeal hearing. If the City Council denies the application on appeal (whether by affirmation or reversal), the written notice shall contain the reasons for the decision.
E. Limited Exceptions.
- Preface. The provisions in this Section establish a procedure by which the City may grant an exception to the standards in this Chapter but only to the extent necessary to avoid conflict with applicable federal or state law. When the applicant requests an exception, the Director (or the City Council on appeal) shall consider the findings in 9.170.090(e)(2) in addition to the findings required under 9.170.090(b). Each exception is specific to the facts and circumstances in connection with each application. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance.
- Required Findings. The approval authority shall not grant any limited exception pursuant to this Section unless the approval authority finds all the following:
- a. The applicant has provided the approval authority with a reasonable and clearly defined technical service objective to be achieved by the proposed facility;
- b. The applicant has provided the approval authority with a detailed written statement that explains why (i) a denial based on the application’s noncompliance with a specific provision or requirement would violate federal law, state law or both; or (ii) a provision in this Chapter, as applied to the applicant, would violate any rights or privileges conferred on the applicant by federal or state law;
- c. The applicant has provided the approval authority with a written statement that contains a detailed and fact-specific explanation as to why the proposed facility cannot be deployed in compliance with the applicable provisions in this Chapter, the Santa Barbara Municipal Code, the General Plan or any specific plan;
- d. The applicant has provided the approval authority with a meaningful comparative analysis with the factual reasons why all alternative locations and designs identified in the administrative record (whether suggested by the applicant, the City, public comments or any other source) are not technically feasible or potentially available to reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed facility;
- e. The applicant has demonstrated that the proposed location and design is the least non-compliant configuration that will reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed facility, which includes without limitation a meaningful comparative analysis into multiple smaller or less intrusive facilities dispersed throughout the intended service area;
- f. The exception requested by the applicant does not compromise or excuse compliance any fire safety or other public safety standard; and
- g. The exception is narrowly tailored such that any deviation from this Chapter is only to extent necessary for compliance with federal or state law.
- Burden of Proof. The applicant shall have the burden to prove to the Director (or City Council on appeal) that an exception should be granted pursuant to this Section). The standard of evidence shall be the same as required by applicable federal or state law for the issue raised in the applicant’s request for an exception.
- Expert Review. Due to the technical nature of issues likely to be raised, independent consultant review will generally be appropriate when considering an exception request.
- Legal Review. The approval of any exception request shall require the consultation of the City Attorney as to the validity and legal justification for the exception.
9.170.100 Location Standards.
A. Locations. To assist applicants, staff and the approval authority understand and respond to the community’s aesthetic preferences and values, this Section describes preferred and discouraged locations for small wireless facilities and strand-mounted wireless facilities in the public rights-of-way.
- Preferred Locations. The City requires small wireless facilities and strand-mounted wireless facilities in the public rights-of-way to be installed at locations, ordered from most preferred to least preferred, as follows:
- a. locations on principal arterials within Manufacturing Zones;
- b. locations on minor arterials within Manufacturing Zones;
- c. locations on state highways within Manufacturing Zones that also require a Caltrans Encroachment Permit;
- d. locations on major collector roads within Manufacturing Zones;
- e. locations on minor collector roads within Manufacturing Zones;
- f. locations on local roads within Manufacturing Zones;
- g. locations on principal arterials within Commercial and Office Zones;
- h. locations on minor arterials within Commercial and Office Zones;
- i. locations on state highways within Commercial and Office Zones that also require a Caltrans Encroachment Permit;
- j. locations on major collector roads within Commercial and Office Zones;
- k. locations on minor collector roads within Commercial and Office Zones;
- l. locations on local roads within Commercial and Office Zones;
- m. locations on principal arterials within Coastal-Oriented Zones;
- n. locations on minor arterials within Coastal-Oriented Zones;
- o. locations on state highways within Coastal-Oriented Zones that also require a Caltrans Encroachment Permit;
- p. locations on major collector roads within Coastal-Oriented Zones;
- q. locations on minor collector roads within Coastal-Oriented Zones;
- r. locations on local roads within Coastal-Oriented Zones;
- s. locations on principal arterials within Park and Recreation Zones;
- t. locations on minor arterials within Park and Recreation Zones;
- u.locations on state highways within Park and Recreation Zones that also require a Caltrans Encroachment Permit;
- v. locations on major collector roads within Park and Recreation Zones;
- w. locations on minor collector roads within Park and Recreation Zones;
- x. locations on local roads within Park and Recreation Zones;
- Discouraged Locations. Applicants shall not propose to install small wireless facilities or strand-mounted wireless facilities in a discouraged location unless no alternative site in a preferred location would be technically feasible. The following locations are discouraged, and ordered from least discouraged to most discouraged:
- a. locations on principal arterials within Residential Zones;
- b. locations on minor arterials within Residential Zones;
- c. locations on state highways within Residential Zones that also require a Caltrans Encroachment permit;
- d. locations on major collector roads within Residential Zones;
- e. locations on minor collector roads within Residential Zones;
- f. locations on local roads within Residential Zones;
- g. locations within 250 feet from a historic resource;
- h. locations within 500 feet from the small wireless facility or strand-mounted wireless facility to a hospital or assisted living facility structure;
- i. locations within 500 feet from the small wireless facility or strand-mounted wireless facility to a daycare facility, K-12 school structure, or City designated Park; and
- j. locations within 500 feet from the small wireless facility or strand-mounted wireless facility to a residential dwelling’s windows for living areas.
B. Support Structures. To assist applicants, staff and the approval authority understand and respond to the community’s aesthetic preferences and values, and to mitigate unnecessary obstructions in the public rights-of-way, this Section describes preferred and prohibited support structures.
- Small Wireless Facility Support Structure Preferences. The City requires small wireless facilities in the public rights-of-way to be installed on support structures, ordered from most preferred to least preferred, as follows:
- a. existing or replacement streetlights;
- b. new, non-replacement streetlights;
- c. existing or replacement utility poles;
- d. new, non-replacement non-pole concealment structures;
- e. existing or replacement non-pole concealment structures, such as monuments, kiosks, bus shelters and other street furniture;
- Strand-Mounted Wireless Facility Support Structures. The City requires strand-mounted wireless facilities in the public rights-of-way to be installed on a strand, cable or line strung between two existing utility poles.
- Prohibited Support Structures. Small wireless facilities and strandmounted wireless facilities shall not be installed on the following support structures:
- a. traffic signals;
- b. decorative poles;
- c. new, non-replacement wood poles;
C. Encroachments Over Private Property. No small wireless facilities, strand-mounted wireless facilities or any associated antennas, accessory equipment or improvements may encroach onto or over any private or other property outside the public rights-of-way without the property owner’s express written consent.
D. No Interference with Other Uses. Small wireless facilities, strandmounted wireless facilities and any associated antennas, accessory equipment or improvements shall not be located in any place or manner that would physically interfere with or impede access to any: (1) worker access to any above-ground or underground infrastructure for traffic control, streetlight or public transportation, including without limitation any curb control sign, parking meter, vehicular traffic sign or signal, pedestrian traffic sign or signal, barricade reflectors; (2) access to any public transportation vehicles, shelters, street furniture or other improvements at any public transportation stop; (3) worker access to above-ground or underground infrastructure owned or operated by any public or private utility agency; (4) fire hydrant or water valve; (5) access to any doors, gates, sidewalk doors, passage doors, stoops or other ingress and egress points to any building appurtenant to the rights-of-way; (6) fire escape; or (7) streets or sidewalks in violation of any applicable laws including but not limited to the Americans with Disabilities Act, the General Plan Local Costal Program and any applicable specific plan (e.g., Pedestrian Master Plan) and the Code.
E. Replacement Pole Location. All replacement poles must:
- (1) be located as close to the removed pole as possible;
- (2) be aligned with the other existing poles along the public rights-of-way; and
- (3) be compliant with all applicable standards and specifications by the identified or required by the Director, which may include, without limitation, requirements that the replacement pole match the color and finish of the existing pole.
F. Additional Requirements. In addition to all other requirements in this Chapter, small wireless facilities, strand-mounted wireless facilities and all associated antennas, accessory equipment or improvements shall:
- Be placed as close as possible to alignment with the property line that divides two parcels abutting the public rights-of-way;
- Not be placed directly in front of any door or window;
- Not be placed within 20 feet from a residential dwelling’s windows;
- Be placed at mid-block instead of at any intersections on principal arterials and minor arterials;
- Not be placed within any clear zone at any intersections;
- Not be placed within any garage/access driveway triangle area that crosses a front property line and blocks visibility above 42 inches. This triangle area is created:
- a. When a driveway directly abuts a portion of a street with a sidewalk and parkway, the triangle is measured on two sides by a distance of 10 feet from the side of a driveway and 10 feet back from the front lot line; or
- b. When a driveway directly abuts a portion of a street without a sidewalk and parkway, the minimum required site distance is established based on legal vehicle speed and the position of the driver’s eye in relation to the intersection as determined by the Director. The Director may require additional site distance due to sitespecific conditions;
- Not be placed in any location that obstructs view lines for traveling vehicles, bicycles and pedestrian;
- Not be placed in any location that obstructs views of any traffic signs or signals;
- Not be placed in any location that obstructs illumination patterns forexisting streetlights;
- Be placed at least 15 feet away from any driveway or established pedestrian pathway between a residential structure and the public rights-of-way;
- Be placed at least 50 feet away from any driveways police/sheriff’s stations, fire stations or other emergency responder facilities; and
- Be placed at least 50 feet away from any streetlight, utility pole or other similar support structure if the small wireless facility and any associated antennas, accessory equipment or improvements are attached to or part of any new, non-replacement support structure.
9.170.110 Design Standards.
A. General Design Standards. The standards in this Section shall be applicable to all small wireless facilities and strand-mounted wireless facilities in the public rights-of-way:
- Stealth/Concealment. All small wireless facilities and strandmounted wireless facilities must be stealth to the maximum extent feasible with concealment elements and techniques that mimic or blend with the underlying support structure, surrounding environment and adjacent uses.
- Finishes. All exterior surfaces shall be painted, colored and wrapped in flat, non-reflective hues that match the underlying support structure or blend with the surrounding environment. All surfaces shall be treated with graffiti-resistant sealant. All finishes shall be subject to the approval authority’s prior approval.
- Noise. All small wireless facilities and strand-mounted wireless facilities must be compliant with all applicable noise regulations. Equipment likely to create noise, such as cooling fans, are strongly discouraged except when placed in an underground vault. The approval authority may require the applicant to incorporate appropriate noise-baffling materials and noise-mitigation strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations.
- Trees and Landscaping. Small wireless facilities and strandmounted wireless facilities shall not be installed (in whole or in part) within any tree drip line. Small wireless facilities may not displace any existing tree or landscape features. All small wireless facilities proposed to be placed in a landscaped area in the public rights-of-way must include hardscape or landscape features (which may include, without limitation, shrubs and ground cover) and a landscape maintenance plan. The approval authority may require additional hardscape or landscape features for small wireless facilities proposed to be placed in a landscaped area in the public rights-of-way to screen the small wireless facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the stealth techniques required under this Chapter. All plants proposed or required must be native and drought-resistant and be consistent with any landscaping requirements for the underlying zone.
- Security Measures. To prevent unauthorized access, theft, vandalism, attractive nuisance or other hazards, reasonable and appropriate security measures, such as locks, removable climbing pegs and anti-climbing devices, may be approved. Security measures shall be designed and implemented in a manner that enhances or contributes to the overall stealth techniques, and the approval authority may condition approval on additional stealth elements to mitigate any aesthetic impacts, which may include, without limitation, additional hardscape or landscape features. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures. Cabinets and equipment shroud must be kept secured to prevent unauthorized access.
- Secondary Power Sources. The approval authority may approve secondary or backup power sources on a case-by-case basis. The approval authority shall not approve any permanent diesel generators within the public rights-of-way or at any other location or within 200 feet from any residence; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators.
- Lights. All new or replacement street lights and street light fixtures must be aimed and shielded so that their illumination effects are directed downwards and confined within the public rights-of-way in a manner consistent with any other standards and specifications as identified or required by the approval authority. Small wireless facilities and strand-mounted wireless facilities may not include exterior lights other than as may be required under Federal Aviation Administration, FCC or other applicable federal or state governmental regulations. All antennas, accessory equipment and other improvements with indicator, status or other lights must be installed in locations and within enclosures that eliminate illumination impacts visible from publicly accessible areas. Any light beacons or lightning arresters shall be included in the overall height calculation.
- Signage; Advertisements. All small wireless facilities and strandmounted wireless facilities must include signage that accurately identifies the equipment owner/operator, the owner/operator’s site name or identification number and a toll-free number to the owner/operator’s network operations center. Small wireless facilities and strand-mounted wireless facilities may not bear any other signage or advertisements unless expressly approved by the approval authority, required by law or recommended under FCC or other federal governmental agencies for compliance with RF emissions regulations.
- Parking; Access. Any equipment or improvements constructed or installed in connection with any wireless facilities must not reduce any street parking spaces within the public rights-of-way.
- Compliance with Laws. All small wireless facilities and strandmounted wireless facilities must be designed and sited in compliance with all applicable federal, state and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, Americans with Disabilities Act, Fair Housing Amendments Act of 1988, National Environmental Policy Act, FCC rules and regulations, general plan and any applicable specific plan, the Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.
B. Antennas. The provisions in this Section are generally applicable to all antennas.
- Shrouding; Other Stealth/Concealment. All antennas and associated cables, jumpers, wires, mounts, masts, brackets and other connectors and hardware must be installed within a single shroud or radome to the extent technically feasible. If the antennas cannot be placed in an opaque shroud, the Director may approve alternative stealth techniques consistent with the goals of this Chapter. For pole-top antennas, the shroud must be visually consistent with the design, color and scale of the underlying pole, and generally should not exceed 2.5 times the median pole diameter. For side-arm antennas, the shroud must cover the cross arm and any cables, jumpers, wires or other connectors between the vertical riser and the antenna.
Figure 1: Antenna concealed within a single shroud (or radome) with a tapered cable shroud between the antenna and pole-top.
- Antenna Volume. Each individual antenna associated with a single small wireless facility shall not exceed three cubic feet. The cumulative volume for all antennas on a single small wireless facility shall not exceed: (A) three cubic feet within 500 feet of a residential dwelling; or (B) six cubic feet for all other locations.
- Overall Height. No antenna may extend more than six feet above the support structure plus any minimum separation between the antenna and other pole attachments required by applicable health and safety regulations, or the maximum structure height permitted by the underlying zone pursuant to Titles 28, 29 or 30 as applicable (whichever is less), except that the maximum overall height for an antenna on any support structure shall be 25 feet in a Hillside Design District.
- Horizontal Extensions. Side-mounted antennas, where permitted, should be placed as close to the support structure as technically feasible and shall not extend over any roadway for vehicular travel or any abutting private property. If applicable laws require a side-mounted antenna to extend more than 24 inches from the support structure, the extension shall be no greater than required for compliance with such laws as documented by the applicant with clear and convincing evidence in the application.
Figure 2: Pole-top antenna on a wood utility pole.
C. Accessory Equipment. The provisions in this Section are generally applicable to all accessory equipment.
- Volume. Surface-mounted and above-ground accessory equipment for a single small wireless facility or strand-mounted wireless facility shall be as small as technically feasible for the technology(ies) involved. This requirement shall not be applicable to accessory equipment placed underground or within existing structures.
- Undergrounded Accessory Equipment.
- a. Where Required. Accessory equipment (other than any electric meter (where permitted because a flat-rate service is not available) and an emergency disconnect switch) shall be placed underground when proposed in any (i) underground utility district or (ii) any location where the Director finds substantial evidence that the additional above-ground accessory equipment would incommode the public’s uses in the public rights-of-way. Notwithstanding the preceding sentence, the Director may grant an exception when the applicant demonstrates by clear and convincing evidence that compliance with this section would be technically infeasible or substantially similar existing accessory equipment has been permitted above ground in the same underground utility district.
- b. Vaults. All undergrounded accessory equipment must be installed in an environmentally controlled vault that is load-rated to meet the City’s standards and specifications. Underground vaults located beneath a sidewalk must be constructed with a slip-resistant cover and properly secured to prevent unauthorized access. Vents for airflow shall be flush-to-grade when placed within the sidewalk and may not exceed two feet above grade when placed off the sidewalk. Vault lids shall not exhibit logos or commercial advertisements.
Figure 3: Flush-to-grade underground equipment vault.
- Pole-Mounted Accessory Equipment. The provisions in this Section are applicable to all pole-mounted accessory equipment in connection with small wireless facilities and strand-mounted wireless facilities.
- a. Preferred Stealth/Concealment Techniques. Applicants should propose to place any pole-mounted accessory equipment in the least conspicuous position under the circumstances presented by the proposed pole and location. Polemounted accessory equipment may be installed behind street, traffic or other signs to the extent that the installation complies with applicable public health and safety regulations.
- b. Minimum Ground Clearance. The lowest point on any polemounted accessory equipment shall be at least 10 feet above ground level adjacent to the pole. If applicable laws require any pole-mounted accessory equipment component to be placed less than 10 feet above ground level, the clearance from ground level shall be no less than required for compliance with such laws.
Figure 4: Pole-mounted accessory equipment shroud on a wood utility pole.
- c. Horizontal Extension. Pole-mounted accessory equipment should be as close to flush with the pole as technically feasible and shall not extend over any roadway for vehicular travel or any abutting private property. If applicable laws preclude flush-mounted accessory equipment, the separation gap between the pole and the accessory equipment shall be no greater than required for compliance with such laws and concealed by opaque material (such as cabinet “flaps” or “wings”).
Figure 5: Shrouded, side-mounted antenna on wood utility pole to comply with CPUC horizontal separation requirements.
Figure 6: Flush-mounted radio shroud.
- d. Orientation. Unless placed behind a street sign or some other concealment that dictates the equipment orientation on the pole, all pole-mounted accessory equipment should be oriented away from prominent views. In general, the proper orientation will likely be toward the street to reduce the overall profile when viewed from the nearest abutting properties. If orientation toward the street is not feasible, then the proper orientation will most likely be away from oncoming traffic. If more than one orientation would be technically feasible, the Director may select the most appropriate orientation.
Figure 7: Accessory equipment concealed behind banners.
Figure 8: Base-mounted accessory equipment.
- a. Concealment. On collector roads and local streets, the City prefers ground-mounted accessory equipment to be concealed as follows: (i) within a landscaped parkway, median or similar location, behind or among new/existing landscape features and painted “Frazee Malaga Green” or powder coated matching Classic RAL System RAL 6012 “Black Green” or wrapped in flat natural colors to blend with the landscape features. On arterial roads outside underground utility districts, proposed ground-mounted accessory equipment should be completely shrouded or placed in a cabinet substantially similar in appearance to existing ground-mounted accessory equipment cabinets.
- b. Public Safety; Visibility. To promote and protect public health and safety and prevent potential hazards hidden behind large equipment cabinets, no individual ground-mounted accessory equipment cabinet may exceed four feet in height or four feet in width.
- a. Overhead Lines. The Director shall not approve any new overhead utility lines in underground utility districts. In areas with existing overhead lines, new communication lines shall be “overlashed” with existing communication lines but service conduits shall be placed underground. No new overhead utility service drops shall be permitted to traverse any roadway used for vehicular transit.
- b. Vertical Cable Risers. All cables, wires and other connectors must be routed through conduits within the pole or other support structure, and all conduit attachments, cables, wires and other connectors must be concealed from public view. To the extent that cables, wires and other connectors cannot be routed through the pole, such as with wood utility poles, applicants shall route them through external conduits or shrouds that have been finished to match the underlying pole.
- c. Spools and Coils. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall not be spooled, coiled or otherwise stored on the pole outside equipment cabinets or shrouds.
- d. Electric Meters. Small wireless facilities and strand-mounted wireless facilities shall use flat-rate electric service or other method that obviates the need for a separate above-grade electric meter. Flat-rate electric services shall comply with the rules of the electrical utility as authorized by the CPUC. Flat-rate electric services must include a load control device (fused splice box) and an automatic disconnect switch and be in compliance with the National Electric Code for surge protection. If flat-rate service is not available, applicants may install a separate meter pedestal per City Standard Detail L-09.0. If the proposed project involves a ground-mounted equipment cabinet, an electric meter may be integrated with the cabinet, but the Director shall not approve a separate ground-mounted electric meter pedestal. In no case shall permittee be permitted to use electricity/power provided by a City-owned street light or City-owned circuit without separate written authorization from the City.
- e. Existing Conduit. To reduce unnecessary wear and tear on the public rights-of-way, applicants are encouraged to use existing conduits whenever available and technically feasible. Access to any conduit owned by the City shall be subject to a separate written agreement and the Director’s prior written approval, which the Director may withhold or condition as the Director deems necessary or appropriate to protect the City’s infrastructure, prevent interference with the City’s municipal functions and public health and safety.
D. Strand-Mounted Wireless Facility Additional Design Standards. Notwithstanding anything in this Section 9.170.110 to the contrary, the following additional design standards shall apply to all strand-mounted wireless facilities:
- Quantity. No more than one strand-mounted wireless facility may be installed: (a) on any single span between two poles; or (b) directly adjacent to any single pole.
- Placement. Strand-mounted wireless facilities must be placed as closed as possible to the nearest pole and in no event more than five feet from the nearest pole unless a greater distance is required by applicable health and safety regulations. No portion of a strand-mounted wireless facility may be located in or above the portion of the roadway open to vehicular traffic.
- Volume. Strand-mounted wireless facilities shall not exceed three cubic feet in total volume.
- Ground-Mounted Equipment. The approval authority shall not approve any ground-mounted equipment in connection with a strand-mounted wireless facility, unless the ground-mounted equipment consists of a remote power source used to power a cluster of strand-mounted wireless facilities, in which case such groundmounted equipment shall be subject to the applicable provisions of this Section
- Equipment Finish. All strand-mounted equipment shall be finished in a non-reflective grey color. Any accessory equipment associated with the strandmounted wireless facility mounted on the pole shall be finished to match the underlying pole.
- Excess Cabling. Strand-mounted wireless facilities must be installed with the minimum excess exterior cabling or wires as technically feasible. “Snow shoes” and other spooled fiber or cables are prohibited.
- Health and Safety Regulations. All equipment and other improvements associated with a strand-mounted wireless facility must comply with all applicable health and safety regulations.
Figure 9: Strand-mounted wireless facility with a ground-mounted remote power source.
Figure 10: Strand-mounted wireless facility adjacent to a cable television Wi-Fi node.
9.170.120 Preapproved Designs.
A. Preface. To expedite the review process and encourage collaborative designs among applicants and the City, the City Council authorizes the Board to designate one or more preapproved designs for small wireless facilities or strandmounted wireless facilities as set forth in subsection (b). This Section sets out the process to establish or repeal a preapproved design and the review procedures and findings applicable to these applications.
B.Procedures to Establish or Repeal a Preapproved Design.
- Applications. The Director shall prepare, publish and maintain an application form for requests to establish a preapproved design. In addition to all other requirements specified by the Director, the application shall include (1) scaled conceptual plans and drawings; (2) photo simulations that depict the proposed preapproved design in typical locations within the City; (3) color and/or finish samples; (4) manufacturer product data sheets; and (5) an application fee established by City Council resolution.
- Application Submittal.
- a. Voluntary Pre-Submittal Conference. The department shall provide prospective applicants with the opportunity to schedule and attend a pre-submittal conference with department staff. The City encourages pre-submittal conferences for all applications. The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, any latent issues in connection with the proposed preapproved design, such as compliance with generally applicable rules for public health and safety; potential stealth or concealment issues or concerns (if applicable); coordination with other City departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that City staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The department shall use reasonable efforts to provide the applicant with an appointment within five working days after receiving a written request and any applicable fee or deposit to reimburse the City for its reasonable costs to provide the services rendered in the pre-submittal conference.
- b. Application Submittal Appointments. All applications must be submitted to the City at a pre-scheduled appointment with the department. The department shall use reasonable efforts to provide the applicant with an appointment within 5 working days after the department receives a written request. Any application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed.
- Optional Mockup. The Director, in the Director’s discretion, require an applicant for a preapproved design to erect a full-scale mockup to aid the City’s review. The mockup may use actual or replica equipment to show all visible elements. The mockup shall be placed on City-owned property and maintained throughout the preapproval review process.
- Public Notices. All public notices in connection with any hearing required by this Section shall be given in accordance with Chapter 30.205.
- Initial Review. Within a reasonable time after the Department receives a complete application for a preapproved design, the Director shall prepare and transmit a written recommendation to the Board together with the complete administrative record associated with the application. The Director’s initial recommendation shall not require a noticed public hearing.
- Board Action. The Board shall conduct a noticed public hearing in conformance with the provisions of Chapter 30.205. After the public hearing, the Board shall make a written determination on the proposed preapproved design. The determination requires an affirmative vote by a majority of the total membership of the Board. Approvals or denials by the Board shall be (1) immediately effective and (2) final and not subject to any further appeals and reflected in the meeting minutes.
- Required Findings to Establish a Preapproved Design. An application for a preapproved design may not be recommended for approval by the Board unless the proposed preapproved design is found to be (1) in substantial conformance with the applicable design requirements in Section 9.170.110 and (2) architecturally compatible with the areas in which the preapproved design would be available. If the findings may be made for some but not all areas within the City, the recommendation for approval may be limited to specific areas identified by the approval authority in its written findings.
- Nondiscrimination. An established preapproved design may be used by any applicant, whether the applicant originally initiated the preapproval process or not. The Board’s decision to adopt a preapproved design expresses no preference or requirement that applicants use the specific vendor or manufacturer that fabricated the design depicted in the preapproved plans. Any other vendor or manufacturer that fabricates a facility to the standards and specifications in the preapproved design with like materials, finishes and overall quality shall be acceptable as a preapproved design.
- Repeal. A preapproved design may be repealed only by a subsequent City Council resolution. A recommendation to repeal a preapproved design may be made by the Director, Board, Planning Commission or City Council on such official’s or body’s own motion. Such recommendation for repeal shall include a written statement with the reasons for the proposed repeal.
C. Modified Review Procedures. Applications for a preapproved design within 500 feet of a residential dwelling shall remain subject to the notice requirements in Section 9.170.080and any potential appeals under Section 9.170.090(d). Otherwise, applications for a preapproved design in all other locations shall not be subject to the notice requirements in Section 9.170.080 or any potential appeals under Section 9.170.090(d).
D. Modified Findings for Approval. For any complete Small Cell Facility Permit application utilizing a preapproved design, the Director shall presume that the proposed project complies with the findings required under Sections 9.170.090(b)(1), 9(b)(2), 9.170.090(b)(4), 9(b)(5), 9.170.090(b)(6) and 9.170.090(b)(7). No such presumption shall be applicable to the required findings under 9.170.090 (b)(3), 9.170.090(b)(8) or 9.170.090 (b)(9).
9.170.130 Standard Conditions of Approval.
A. Standard Conditions. Except as may be authorized in Section 9.170.130(b), all Small Cell Facility Permits issued under this Chapter shall be automatically subject to the conditions in this Section and these conditions shall be deemed to be incorporated by reference to any permit approved or deemed approved by applicable law.
- Permit Term. This permit will automatically expire 10 years and one day from its issuance unless California Government Code § 65964(b) authorizes the City to establish a shorter term for public safety reasons. Any other permits or approvals issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law.
- Permit Renewal. The permittee may apply for permit renewal not more than one year before this Small Cell Facility Permit expires. The permittee must demonstrate that the subject small wireless facility or stand mounted small cell facility complies with all the conditions of approval associated with this Small Cell Facility Permit and all applicable provisions in the Code and this Chapter that exists at the time the decision to renew or not renew is rendered. The Director may modify or amend the conditions on a case-by-case basis as may be necessary or appropriate to ensure compliance with this Chapter or other applicable law. Upon renewal, this Small Cell Facility Permit will automatically expire 10 years and one day from its issuance.
- Approved Plans. Any construction plans submitted to the building official shall incorporate the permit, together with all conditions of approval and the photo simulations associated with the permit (collectively, the “Approved Plans”). The permittee must construct, install and operate the small wireless facility or strand-mounted wireless facility in substantial 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 small wireless facility or strand-mounted wireless facility, shall be subject to the Director’s prior review and approval. After the Director receives a written request to approve an alteration, modification or other change to the Approved Plans, the Director may refer the request to the City Council if the Director finds that it substantially deviates from the Approved Plans or implicates a significant or substantial land-use concern.
- GO 159A Certification. Within 15 business days after the City issues a Small Cell Facility Permit, the permittee shall serve copies of California Public Utility Commission notification letters to City Clerk, Director and City Manager, as required by CPUC General Order No. 159A.
- Pre-Construction. The permittee shall stake the site, install temporary best management practices and request a pre-grade inspection prior to the commencement of any construction.
- Post-Installation Certification. Within 60 calendar days after the permittee commences full, unattended operations of a small wireless facility or strandmounted wireless facility approved or deemed-approved, the permittee shall provide the Director with documentation reasonably acceptable to the Director that the small wireless facility or strand-mounted wireless facility has been installed and constructed in strict compliance with the approved construction drawings and photo simulations. Such documentation shall include without limitation as-built drawings, GIS data and site photographs.
- Build-Out Period. This Small Cell Facility Permit will automatically expire 36 months from the approval date (the “Build-Out Period”) unless the permittee obtains all other permits and approvals required to install, construct and operate the approved small wireless facility or strand-mounted wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, support structure or the small wireless facility or strand-mounted wireless facility and its use. The permittee may request in writing, and the City may grant in writing, one six-month extension if the permittee submits substantial and reliable written evidence demonstrating justifiable cause for a six-month extension. If the Build-Out Period and any extension finally expire, the permit shall be automatically void but the permittee may resubmit a complete application, including all application fees, for the same or substantially similar project.
- Site Maintenance. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences, hardscape and landscape features, in a neat, clean and safe condition in accordance with the approved construction drawings and all conditions in this Small Cell Facility Permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee shall regularly inspect the small wireless facility or strand-mounted wireless facility to determine whether any maintenance is needed. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
- Compliance with Laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law (“laws”) applicable to the permittee, the subject property, the small wireless facility or strand-mounted wireless facility or any use or activities in connection with the use authorized in this Small Cell Facility Permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the Director (such as, without limitation, those requirements affixed to an encroachment permit). The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee’s obligations to maintain compliance with all laws. No failure or omission by the City to timely notice, prompt or enforce compliance with any applicable provision in the Code, any permit, any permit condition or any applicable law or regulation, shall be deemed to relieve, waive or lessen the permittee’s obligation to comply in all respects with all applicable provisions in the Code, any permit, any permit condition or any applicable law or regulation.
- Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all unreasonable, undue or unnecessary adverse impacts on nearby properties that may arise from the permittee’s or its authorized personnel’s construction, installation, operation, modification, maintenance, repair, removal and other activities on or about the site. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines except during normal construction work hours authorized by the Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the City or other state or federal government agency or official with authority to declare an emergency within the City. The Director may issue a stop work order for any activities that violates this condition in whole or in part. If the Director finds good cause to believe that ambient noise from a facility violates applicable provisions in the Code, the Director, in addition to any other actions or remedies authorized by the permit, the Code or other applicable laws, may require the permittee to commission a noise study by a qualified professional to evaluate the facility’s compliance.
- Inspections; Emergencies. The permittee expressly acknowledges and agrees that the City’s officers, officials, staff, agents, contractors or other designees may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee. Notwithstanding the prior sentence, the City’s officers, officials, staff, agents, contractors or other designees may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee, if present, may observe the City’s officers, officials, staff or other designees while any such inspection or emergency access occurs.
- Permittee’s Contact Information. Prior to final inspection and at all times relevant to this permit, the permittee shall keep on file with the department basic contact and site information on a form provided by the City. This information shall include, but is not limited to, the following: (A) the name, physical address, notice address (if different), direct telephone number and email address for (i) the permittee and, if different from the permittee, the (ii) site operator, (ii) equipment owner, (iii) site manager and (iv) agent for service of process; (B) the regulatory authorizations held by the permittee and, to the extent applicable, site operator, equipment owner and site manager as may be necessary for the facility’s continued operation; (C) the facility’s site identification number and name used by the permittee and, to the extent applicable, site operator, equipment owner and site manager; and (D) a toll-free telephone number to the facility’s network operations center where a live person with power-down control over the facility is available 24 hours-per-day, seven days-per-week. Within 10 business days after a written request by the City, the permittee shall furnish the City with an updated form that includes all the most-current information described in this condition.
- Indemnification. The permittee and, if applicable, the property owner upon which the small wireless facility is installed shall defend, indemnify and hold harmless the City, City Council and the City’s boards, commissions, agents, officers, officials, employees and volunteers (collectively, the “indemnitees”) from any and all (i) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings (“claims”) brought against the indemnitees to challenge, attack, seek to modify, set aside, void or annul the City’s approval of this Small Cell Facility Permit, and (ii) other claims of any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee’s or its agents’, Directors’, officers’, employees’, contractors’, subcontractors’, licensees’ or customers’ acts or omissions in connection with this Small Cell Facility Permit or the small wireless facility or strand-mounted wireless facility. In the event the City becomes aware of any claims, the City will use best efforts to promptly notify the permittee and the private property owner (if applicable) and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City’s defense, and the property owner or permittee (as applicable) shall promptly reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. The permittee expressly acknowledges and agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the City to approve this Small Cell Facility Permit, and that such indemnification obligations will survive the expiration, revocation or other termination of this Small Cell Facility Permit.
- Insurance. At all times relevant to this permit, the permittee shall obtain and maintain insurance policies as follows:
- a. Commercial General Liability. Insurance Services Office Form CG 00 01 covering Commercial General Liability (“CGL”) on an “occurrence” basis, with limits not less than $1,000,000 per occurrence or $2,000,000 in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following: Bodily Injury and Property Damage; Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground (“UCX”) exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii) products/completed operations liability; or (iv) contain any other exclusion contrary to the conditions in this permit.
- b. Workers’ Compensation. The permittee shall certify that it is aware of the provisions of California Labor Code § 3700, which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and further certifies that the permittee will comply with such provisions before commencing work under this permit. To the extent the permittee has employees at any time during the term of this permit, at all times during the performance of the work under this permit the permittee shall maintain insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
- c. Errors and Omissions Policy. The permittee shall maintain Professional Liability (Errors and Omissions) Insurance appropriate to the permittee’s profession, with limit no less than $1,000,000 per occurrence or claim. This insurance shall be endorsed to include contractual liability applicable to this permit and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the permittee. “Covered Professional Services” as designed in the policy must specifically include work performed under this permit.
- d. Umbrella Policy. If an umbrella or excess liability insurance policy is used to satisfy the minimum requirements for CGL or Automobile Liability insurance coverage listed above, the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf,” with defense costs payable in addition to policy limits. permittee shall provide a “follow form” endorsement or schedule of underlying coverage satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.
- e.Endorsements. The relevant policy(ies) shall name the City,its elected/ appointed officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) calendar days’ prior written notice to the City of to the cancellation or material modification of any applicable insurance policy; provided, however, that in no event shall the permittee fail to provide written notice to the City within 10 calendar days after the cancellation or material modification of any applicable insurance policy.
- **f. Certificates. Before the City issues any permit, the permittee shall deliver to the Director insurance certificates, in a form satisfactory to the Director, that evidence all the coverage required above. In addition, the permittee shall promptly deliver complete copies of all insurance policies upon a written request by the Director.
- Performance Bond. Before the City issues any permits required to commence construction in connection with this permit, the permittee shall post a performance bond from a surety and in a form acceptable to the Director in an amount reasonably necessary to cover the cost to remove the improvements and restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities or other infrastructure removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, the Director shall take into consideration any information provided by the permittee regarding the cost to remove the small wireless facility or strand-mounted wireless facility to a standard compliant with applicable laws. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.
- Permit Revocation. Any permit granted under this Chapter or deemed approved by the operation of law may be revoked in accordance with the provisions and procedures in this condition. The Director may initiate revocation proceedings when the Director has information that the facility may not be in compliance with all applicable laws, which includes without limitation, any permit in connection with the facility and any associated conditions with such permit(s). A permit granted under this Chapter or deemed approved by the operation of law may be revoked only by the City Council after a duly notice public hearing. Before any public hearing to revoke a permit granted under this Chapter or deemed approved by the operation of law, the Director must issue a written notice to the permittee that specifies (A) the facility; (B) the violation(s) to be corrected; (C) the timeframe in which the permittee must correct such violation(s); and (D) that, in addition to all other rights and remedies the City may pursue, the City may initiate revocation proceedings for failure to correct such violation(s). The City Council may revoke a permit when it finds substantial evidence in the written record to show that the facility is not in compliance with any applicable laws, which includes without limitation, any permit in connection with the facility and any associated conditions with such permit(s). Any decision by the City Council to revoke or not revoke a permit shall be final and not subject to any further appeals. Within five business days after the City Council adopts a resolution to revoke a permit, the Director shall provide the permittee with a written notice that specifies the revocation and the reasons for such revocation.
- Record Retention. Throughout the permit term, the permittee must maintain a complete and accurate copy of the written administrative record, which includes without limitation the Small Cell Facility Permit application, Small Cell Facility Permit, the Approved Plans and photo simulations incorporated into this approval, all conditions associated with this approval, any ministerial permits or approvals issued in connection with this approval and any records, memoranda, documents, papers and other correspondence entered into the public record in connection with the Small Cell Facility Permit (collectively, “Records”). If the permittee does not maintain such Records as required in this condition, any ambiguities or uncertainties that would be resolved by inspecting the missing Records will be construed against the permittee. The permittee shall protect all Records from damage from fires, floods and other hazards that may cause deterioration. The permittee may keep Records in an electronic format; provided, however, that hard copies or electronic Records kept in the City’s regular files will control over any conflicts between such City-controlled copies or Records and the permittee’s electronic copies, and complete originals will control over all other copies in any form. The requirements in this condition shall not be construed to create any obligation to create or prepare any Records not otherwise required to be created or prepared by other applicable laws. Compliance with the requirements in this condition shall not excuse the permittee from any other similar record-retention obligations under applicable law.
- Abandoned Facilities. The small wireless facility or strand-mounted wireless facility authorized under this Small Cell Facility Permit shall be deemed abandoned if not operated for any continuous six-month period. Within 90 days after a small wireless facility or strand-mounted wireless facility is abandoned or deemed abandoned, the permittee or property owner (e.g., joint pole owner) shall completely remove the small wireless facility or strand-mounted wireless facility and all related improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the Code. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within said 90-day period, the City shall have the right (but not the obligation) to perform such removal and restoration with or without notice, and the permittee and property owner shall be jointly and severally liable for all costs and expenses incurred by the City in connection with such removal or restoration activities.
- Landscaping. The permittee shall replace any landscape or hardscape features damaged or displaced by the construction, installation, operation, maintenance or other work performed by the permittee or at the permittee’s direction on or about the site. If any trees are damaged or displaced, the permittee shall hire and pay for a licensed arborist to select plant and maintain replacement landscaping in an appropriate location for the species. Any replacement tree must be substantially the same size as the damaged tree or as otherwise approved by the City. The permittee shall, at all times, be responsible to maintain any replacement landscape or hardscape features.
- Cost Reimbursement. The permittee acknowledges and agrees that (i) the permittee’s request for authorization to construct, install and operate the wireless facility will cause the City to incur costs and expenses; (ii) the permittee shall be responsible to reimburse the City for all costs incurred in connection with the permit, which includes without limitation costs related to application review, permit issuance, site inspection and any other costs reasonably related to or caused by the request for authorization to construct, install and operate the wireless facility; (iii) any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse the City for all such costs 10 days after a written demand for reimbursement and reasonable documentation to support such costs; and (iv) the City shall have the right to withhold any permits or other approvals in connection with the wireless facility until and unless any outstanding costs have been reimbursed to the City by the permittee.
- Future Undergrounding Programs. Notwithstanding any term remaining on any Small Cell Facility Permit, if other utilities or communications providers in the public rights-of-way underground their facilities in the segment of the public rights-of-way where the permittee’s small wireless facility or strand-mounted wireless facility is located, the permittee must also underground its equipment, except the antennas and any approved electric meter, at approximately the same time. Accessory equipment such as radios and computers that require an environmentally controlled underground vault to function shall not be exempt from this condition. Small wireless facilities installed on wood utility poles or strand-mounted wireless facilities installed on strands between wood utility poles that will be removed pursuant to the undergrounding program may be reinstalled on a streetlight that complies with the City’s standards and specifications. Such undergrounding shall occur at the permittee’s sole cost and expense except as may be reimbursed through tariffs approved by the state public utilities commission for undergrounding costs.
- Electric Meter Upgrades. If the commercial electric utility provider adopts or changes its rules obviating the need for a separate or ground-mounted electric meter and enclosure, the permittee on its own initiative and at its sole cost and expense shall remove the separate or ground-mounted electric meter and enclosure. Prior to removing the electric meter, the permittee shall apply for any encroachment and other ministerial permit(s) required to perform the removal. Upon removal, the permittee shall restore the affected area to its original condition that existed prior to installation of the equipment.
- Rearrangement and Relocation. The permittee acknowledges that the City, in its sole discretion and at any time, may: (A) change any street grade, width or location; (B) add, remove or otherwise change any improvements in, on, under or along any street owned by the City or any other public agency, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications; or (C) perform any other work deemed necessary, useful or desirable by the City (collectively, “City Work”). The City reserves the rights to do any and all City Work without any admission on its part that the City would not have such rights without the express reservation in this Small Cell Facility Permit. If the Director determines that any City Work will require the permittee’s small wireless facility or strand-mounted wireless facility located in the public rights-of-way to be rearranged or relocated, the permittee shall, at its sole cost and expense, do or cause to be done all things necessary to accomplish such rearrangement or relocation. If the permittee fails or refuses to either permanently or temporarily rearrange or relocate the permittee’s small wireless facility or strand-mounted wireless facility within a reasonable time after the Director’s notice, the City may (but will not be obligated to) cause the rearrangement or relocation to be performed at the permittee’s sole cost and expense. The City may exercise its rights to rearrange or relocate the permittee’s small wireless facility or strand-mounted wireless facility without prior notice to permittee when the Director determines that City Work is immediately necessary to protect public health or safety. The permittee shall reimburse the City for all costs and expenses in connection with such work within 10 days after a written demand for reimbursement and reasonable documentation to support such costs.
- Affirmation of Radio Frequency Standards Compliance. The permittee acknowledges and agrees that the permittee shall submit: (1) an affirmation, under penalty of perjury, that the proposed installation will be operated in compliance with 47 U.S.C. § 324; (2) an affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the maximum permission exposure levels deemed safe by the FCC; and (3) a copy of the fully completed FCC form “A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance: Appendix A” titled “Optional Checklist for Determination of Whether a Facility is Categorically Excluded” for each frequency band of RF emissions to be transmitted from the proposed facility upon the approval of the application. All planned radio frequency emissions on all frequency bands must be shown on the Appendix A form(s) attached to the application. All planned radio frequency emissions are to be entered on each Appendix A form only in wattage units of “effective radiated power”.
- Cooperation with Community/Stakeholder Meetings. The permittee shall reasonably cooperate with requests by the City to participate in community meetings with stakeholders, including permittees, applicants and members of the public, to discuss general issues and concerns, anticipated development, deployment plans, construction status and other similar issues pertaining to small wireless facilities and strand-mounted wireless facilities.
- Successors and Assigns. The conditions, covenants, promises and terms contained in this permit will bind and inure to the benefit of the City and permittee and their respective successors and assigns.
- Severability of Conditions. If any provision in these conditions or such provision’s application to any person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable: (1) such provision or its application to such person, entity or circumstance will be deemed severed from this permit; (2) all other provisions in this permit or their application to any person, entity or circumstance will not be affected; and (3) all other provisions in this permit or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by law.
- City’s Standing Reserved. The City’s grant or grant by operation of law of a permit pursuant to this Chapter does not waive, and shall not be construed to waive, any standing by the City to challenge any FCC rules that interpret the Telecommunications Act, the Spectrum Act or any permit issued pursuant to this Chapter.
- Truthful and Accurate Statements. The permittee acknowledges that the City’s approval relies on the written statements by permittee or persons authorized to act on permittee’s behalf. In any matter before the City in connection with the Small Cell Facility Permit or the small wireless facility or strand-mounted wireless facility approved under the Small Cell Facility Permit, neither the permittee nor any person authorized to act on permittee’s behalf shall, in any written or oral statement, intentionally provide material factual information that is incorrect or misleading or intentionally omit any material information necessary to prevent any material factual statement from being incorrect or misleading.
B. Modified Conditions. The City Council authorizes the Director to modify, add or remove conditions to any Small Cell Facility Permit as the Director deems necessary or appropriate to: (1) protect and promote the public health, safety and welfare; (2) tailor the standard conditions in subsection (a) to the particular facts and circumstances associated with the deployment; or (3) memorialize any changes to the proposed deployment need for compliance with the Code, generally applicable health and safety requirements and any other applicable laws.
It is unlawful for any person to perform any act that is prohibited by this Chapter or to cause or permit to exist any condition that violates this Chapter. This Chapter shall be enforceable as provided in Chapters 1.25 and 1.28. A violation of any of the provision of this Chapter shall be and is hereby declared a public nuisance and may be subject to an action under California Code of Civil Procedure Section 731, and any other remedy available to the City.