Chapter 16. Telecommunications Facilities

Sec. 10-16.101 Purpose.

The purpose and intent of this Chapter is to provide a uniform and comprehensive set of standards for the development and installation of telecommunication and related facilities and to preserve the City’s ability to recover the costs of reviewing applications and where appropriate, franchise fees. The regulations contained herein are designed to protect and promote public health, safety, community welfare and the aesthetic quality of Hercules as set forth within the goals, objectives and policies of the Hercules General Plan, while at the same time not unduly restricting the development of needed telecommunications facilities and encouraging managed development of telecommunications infrastructure.

It is furthermore intended that the City shall apply these regulations to accomplish the following:

(a) Prevent the creation of visual blight within or along the City’s scenic corridors;

(b) Protect the inhabitants of Hercules from the possible adverse health effects associated with exposure to levels of NIER (nonionizing electromagnetic radiation) in excess of standards established by the federal government;

(c) Ensure that a competitive and broad range of telecommunications services and high quality telecommunications infrastructure are provided to serve the community, as well as serve as an important and effective part of Hercules’ emergency response network; and

(d) Simplify and shorten the process for obtaining necessary permits for telecommunication facilities while at the same time protecting the legitimate interests of Hercules citizens;

(e) Preserve the City’s opportunity to recover the costs of application review and record maintenance and, where appropriate, to collect franchise fees. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.102 Definitions.

For the purpose of Chapter 10-16, the following terms and phrases shall have the meaning ascribed to them in this section:

(a) “Antenna” means any system of wires, poles, rods, reflecting discs, or similar devices used for the transmission or reception of electromagnetic waves when such system is either external to or attached to the exterior of a structure. Antennas shall include devices having active elements extending in any direction, and directional beam-type arrays having elements carried by and dispersed from a generally horizontal boom that may be mounted upon and rotated through a vertical mast or tower interconnecting the boom and antenna support, all of which elements are deemed to be a part of the antenna.

(b) “Antenna building-mounted” means any antenna, other than an antenna with its supports resting on the ground, directly attached or affixed to a building, tank, tower, building-mounted mast less than fifteen (15) feet tall and six (6) inches in diameter, or structure other than a telecommunication tower.

(c) “Antenna ground-mounted” means any antenna with its base placed directly on the ground or a mast less than fifteen (15) feet tall and six (6) inches in diameter.

(d) “Antenna vertical” means a vertical type antenna without horizontal cross sections greater than one-half (1/2) inch in diameter.

(e) “Height of a telecommunication tower” means the vertical distance measured from the natural undisturbed ground surface below the center of the base of said tower to the top of the tower itself or, if higher, to the tip of the highest antenna or piece of equipment attached thereto. In the case of building-mounted towers the height of the tower includes the height of the portion of the building on which it is mounted. In the case of crankup or other similar towers whose height can be adjusted, the height of the tower shall be the maximum height to which it is capable of being raised.

(f) “Inhabited areas” means any residence, any other structure regularly occupied by people, or any outdoor area used by people on a regular basis.

(g) “NIER” means nonionizing electromagnetic radiation (i.e., electromagnetic radiation primarily in the visible, infrared, and radio frequency portions of the electromagnetic spectrum).

(h) “Public service use or facility” means any use operated or used by a public body or public utility including but not limited to those in connection with any of the following services: water, wastewater management, public education, parks and recreation, fire and police protection, solid waste management, or utilities.

(i) “Quasi-public use” means a use serving the public at large, and operated by a private entity under a franchise or other similar governmental authorization designed to promote the interests of the general public or operated by a recognized civic organization for the benefit of the general public.

(j) “Readily visible” means an object that stands out as a prominent feature of the landscape when viewed with the naked eye.

(k) “Silhouette” means a representation of the outline of the towers and antenna associated with a telecommunication facility, as seen from an elevation perspective.

(l) “Structure ridgeline” means the line along the top of a roof, or along the top of a structure if it has no roof.

(m) “Telecommunication facility” means a facility that transmits and/or receives electromagnetic signals. It includes antennas, microwave dishes, horns, and other types of equipment for the transmission or receipt of such signals, telecommunication towers or similar structures supporting said equipment, equipment buildings, parking area, and other accessory development.

(n) “Telecommunication facility co-located” means a telecommunication facility comprised of a single telecommunication tower or building supporting one or more antennas, dishes, or similar devices owned or used by more than one public or private entity.

(o) “Telecommunication facility commercial” means a telecommunication facility that is operated primarily for a business purpose or purposes.

(p) “Telecommunication facility multiple-users” means a telecommunication facility comprised of multiple telecommunication towers or buildings supporting one or more antennas owned or used by more than one public or private entity.

(q) “Telecommunications facility noncommercial” means a telecommunication facility that is operated solely for a non-business purpose.

(r) “Telecommunications support facility” means a ground or building-mounted mast less than fifteen (15) feet tall and six (6) inches in diameter supporting a single antenna.

(s) “Telecommunications towers” means a mast, pole, monopole, guyed tower, lattice tower, freestanding tower, or other structure designed and primarily used to support antennas. A ground or building-mounted mast less than fifteen (15) feet tall and six (6) inches in diameter supporting a single antenna is a telecommunications support facility and shall not be considered a telecommunications tower. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.103 Permitted Zones for Facilities.

Non-exempt telecommunications facilities may be sited in any zoning district upon receipt of a use permit. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.104 General Development Standards.

The following requirements shall be met for all telecommunications facilities in any zoning district:

(a) Any applicable General Plan Goals, Objectives, Programs and Policies, Specific Plan, PUD Standards, Design Guidelines, and the permit requirements of any agencies which have jurisdiction over the project.

(b) All the requirements established by the other chapters of the Hercules Municipal Code and Hercules Zoning Ordinance, as amended, which are not in conflict with the requirements contained in this chapter.

(c) The Uniform Building Code, National Electrical Code, Uniform Plumbing Code, Uniform Mechanical Code, and Uniform Fire Code, as amended, where applicable.

(d) Any applicable easements or similar restrictions on the subject property.

(e) All setbacks shall be measured from the base of the tower or structure closest to the applicable property line or structure.

(f) All telecommunication facilities shall comply at all times with all FCC rules, regulations, and standards.

(g) All telecommunication facilities shall maintain in place a security program, when determined necessary by and subject to the review and approval of the Police Chief, that will prevent unauthorized access and vandalism.

(h) All telecommunications carriers and providers engaged in the business of transmitting, supplying or furnishing of telecommunications originating or terminating in the City of Hercules shall register with the City and submit a master plan pursuant to the requirements of the Chapter in Section 10-16.108(a). (Ord. 339 § 1 (part), 1997)

Sec. 10-16.105 Exempt from City Review.

The following shall be permitted without City approvals, provided that: (1) the primary use of the property is not a telecommunications facility and that the antenna use is accessory to the primary use of the property; and (2) no more than one (1) support structure in excess of thirty-five (35) feet for licensed amateur radio operators is allowed on the parcel:

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

(b) A ground, building, or tower mounted antenna operated by a federally licensed amateur radio operator as part of the Amateur Radio Service, if the height does not exceed forty (40) feet.

(c) All citizens band radio antenna or antenna operated by a federally licensed amateur radio operator as part of the Amateur Radio Service which existed at the time of the adoption of the ordinance codified in this Chapter (June 10, 1997).

(d) Government owned and operated receive and/or transmit telemetry station antennas for supervising control and data acquisitions (SCADA) systems for water, flood alert, traffic control devices and signals, stormwater, pump stations and/or irrigation systems, with heights not exceeding forty (40) feet.

(e) Antennas and equipment cabinets or rooms completely located inside of structures and whose purpose is to enhance communications within the structures.

(f) Minor modifications of existing wireless communications facilities and attached wireless communication facilities, whether emergency or routine provided there is little or no change in visual appearance. Minor modifications are those modifications, including addition of antennas, to conforming wireless and attached wireless communications facilities that meet the standards set forth in this Chapter. The City Manager Designee will make the determination as to whether or not there is conformance with standards set forth in this Chapter.

The engineering data and drawings supplied in a reproduced form by the tower and/or antenna manufacturer that address the intended installation method shall be considered sufficient engineering drawings and studies to meet all applicable building code requirements for issuance of a permit.

Any free standing antenna must comply with all applicable set back regulations. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.106 Registration Required.

(a) All telecommunications carriers and providers that offer or provide any telecommunications services for a fee directly to the public, either within the City of Hercules, or outside the corporate limits from telecommunications facilities within the City, shall register with the City pursuant to this Chapter on forms to be provided by the City Manager Designee. The purpose of registration under this Section is to:

(1) Provide the City with accurate and current information concerning the telecommunications carriers and providers who offer or provide telecommunications services within the City, or that own or operate telecommunication facilities with the City;

(2) Assist the City in enforcement of this Chapter;

(3) Assist the City in the collection and enforcement of any license fees or charges that may be due the City; and

(4) Assist the City in monitoring compliance with local, State and federal laws.

(b) Information Required. The following registration information shall be required for all applications:

(1) The identity and legal status of the registrant, including any affiliates;

(2) The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement;

(3) A narrative and map description of registrant’s existing or proposed telecommunications facilities within the City of Hercules;

(4) A description of the telecommunications services that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City;

(5) Information sufficient to determine that the applicant has applied for and received any construction permit, operating license or other approvals required by the Federal Communications Commission (FCC) to provide telecommunications services or facilities within the City;

(6) Information sufficient to determine that the applicant has applied for and received any certificate of authority required by the California Public Utility Commission to provide telecommunications services or facilities within the City; and

(7) Such other information as the City Manager Designee may reasonably require.

(c) Registration Fee. Each application for registration as a telecommunications carrier or provider shall be accompanied by a fee as set forth by resolution of the City Council.

(d) Amendment. Each registrant shall inform the City within sixty (60) days of any change of the information set forth in Section 10-16.106(b). (Ord. 339 § 1 (part), 1997)

Sec. 10-16.107 Permits.

Except for those facilities designated in Section 10-16.105 to be exempt from City review, telecommunications facilities (including but not limited to equipment cabinets) may be located in all zones in accordance with the following procedures:

(a) Use Permit. Except for proposed facilities on any City-owned properties, any other telecommunications facility (including but not limited to any related facilities) that is readily visible from any public place or residential use immediately adjacent to the proposed location shall be permitted subject to the approval of a use permit from the Planning Commission pursuant to Title 10,

Chapter 1, Article 13 of this Code. The determination with regard to visibility shall be made by the City Manager Designee. Proposed facilities on any City-owned properties shall be subject only to administrative review as described in Section 10-16.107(b).

(b) Administrative Review. Any telecommunication facility that both transmits and receives electromagnetic signals (including but not limited to any related facilities), which is not readily visible to the naked eye, from any public place or residential use immediately adjacent to the proposed location or is building-mounted or mounted on an existing pole, shall be permitted, subject to the approval of an administrative use permit from the City Manager Designee. A building mounted antenna is any antenna, other than an antenna with its supports resting on the ground, directly attached or affixed to a building, tank, tower, building-mounted mast less than fifteen (15) feet tall and six (6) inches in diameter, or structure other than a telecommunication tower. A telecommunications tower is a mast, pole, monopole, guyed tower, lattice tower, freestanding tower, or other structure designed and primarily used to support antennas.

Written notice of any such application shall be provided to all property owners within one hundred (100) feet of the proposed site. The determination with regard to visibility shall be made by the City Manager Designee. The City Manager Designee may refer the application to the Planning Commission where he or she determines that the referral is in the best interests of the public. The decision of the City Manager Designee may be appealed to the Planning Commission.

(c) Facilities on City-Owned Property. The City of Hercules encourages the co-location of telecommunications facilities on City-owned properties, subject to administrative review and provided that the operation of said facilities will not disrupt normal City communications or operations. The City Council from time-to-time may establish standards, by resolution separate from this Chapter, relative to the location of telecommunication facilities on City-owned properties, including compensation to the City for use of City property.

(d) Encroachment. All telecommunications facilities shall obtain an encroachment permit from the City Engineer if so required under the provisions of Title 7, Chapter 1 of this Code. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.108 Minimum Application Requirements.

(a) Submittal Information. For all telecommunication facilities, except exempt facilities as defined in Section 10-16.105, the City Manager Designee shall establish and maintain a list of information that must accompany every application. Said information may include, but shall not be limited to, completed supplemental project information forms, a silhouette illustration of the facility, service area maps, network maps, alternative site analysis, NIER (nonionizing electromagnetic radiation) exposure studies, title reports identifying legal access, security considerations, lists of other nearby telecommunication facilities known to the City, master plan for all related facilities within the City limits of Hercules and within the City’s sphere of influence, and facility design alternatives to the proposal. The City Manager Designee may release an applicant from having to provide one (1) or more of the pieces of information on this list upon a finding that in the specific case involved said information is not necessary to process or make a decision on the application being submitted.

(b) Visual Analysis. Except for exempt facilities as defined in Section 10-16.105, the applicant shall submit a visual analysis, which may include photo montage, field mock up or other techniques, which identifies the potential visual impacts of the proposed facility. Consideration shall be given to views from public areas as well as from private residences. The analysis shall assess the cumulative impacts of the proposed facility and other existing and foreseeable telecommunication facilities in the area, and shall identify and include all feasible mitigation measures consistent with the technological requirements of the proposed telecommunication service. All costs for the visual analysis, and applicable administrative costs, shall be borne by the applicant.

(c) Technical Review. The City Manager Designee is explicitly authorized at his/her discretion to employ on behalf of the City an independent technical expert to review any technical materials submitted including, but not limited to, those required under this Section and in those cases where a technical demonstration of unavoidable need or unavailability of alternatives is required. The applicant shall pay all the costs of said review, including any administrative costs incurred by the City. The applicant will identify information in its submittal which it believes to be proprietary. Any proprietary information disclosed to the City or the expert hired shall remain confidential and shall not be disclosed to any third party. The applicant will be notified of the determination that review under this Section is necessary before any costs are incurred. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.109 Life of Permits.

(a) Permit Review. A use permit or administrative approval granted pursuant to this Chapter authorizing establishment of a telecommunication facility, except exempt facilities as defined in Section 10-16.105, shall be reviewed every five (5) years. Costs associated with the review process shall be borne by the telecommunication facility owner/provider. Grounds for non-renewal of the conditional use permit, shall be limited to one of the following findings:

(1) The facility fails to comply with the relevant requirements of this Chapter as they exist at the time of renewal and the permittee has failed to supply assurances acceptable to the City Manager Designee that the facility will be brought into compliance within sixty (60) days;

(2) The permittee has failed to comply with the conditions of approval;

(3) The facility has not been properly maintained; or

(4) The facility has not been upgraded to minimize its impact, including community aesthetics, to the greatest extent permitted by the technology that exists at the time of renewal and is consistent with the provisions of universal service at affordable rates and the City’s goal of facility co-location.

The grounds for appeal of denial of a renewal shall be limited to a showing that one (1) or more of the situations listed above does in fact exist or that the notice required under Section 10-16.109(b) was not provided.

(b) Expiration. If a use permit or other entitlement for use is not renewed, it shall become null and void upon notice and hearing by the Planning Commission five (5) years after it is issued or upon cessation of use for more than ninety (90) days, whichever comes first. Unless a new use permit or another entitlement of use as a telecommunications facility is operative, all improvements installed including their foundations down to three (3) feet (three (3) feet below ground surface) shall be removed from the property and the site restored to its natural pre-construction state within sixty (60) days of nonrenewal or abandonment. All costs associated with removal of facilities and site restoration shall be borne by the permittee. Any access road installed shall also be removed and the ground returned to its natural condition unless the property owner establishes to the satisfaction of the City Manager Designee that these sections of road are necessary to serve some other allowed use of the property that is permitted or is currently present or to provide access to adjoining parcels.

(c) Permit Revocation. A use permit granted under this Section may be revoked or modified pursuant to Section 10-1.1312. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.110 Co-Located and Multiple-User Facilities.

(a) Alternatives Analysis. Except for exempt facilities as defined in Section 10-16.105, an analysis shall be prepared by or on behalf of the applicant, subject to the approval of the appropriate decision making authority, which identifies all reasonable, technically feasible, alternative locations and/or facilities which would provide that proposed telecommunication service. The intention of the alternatives analysis is to present alternative strategies which would minimize the number, size, and adverse environmental impacts of facilities necessary to provide the needed services to the City. The analysis shall address the potential for co-location and the potential to locate facilities as close as possible to the intended service area. It shall also explain the rationale for selection of the proposed site in view of the relative merits of any of the feasible alternatives. Approval of the project is subject to the decision making body making a finding that the proposed site results in fewer or less severe environmental impacts than any feasible alternative site. The City may require independent verification of this analysis at the applicant’s expense.

(b) Facility and Site Sharing. All co-located and multiple-user telecommunication facilities shall be designed to promote facility and site sharing. Telecommunication towers and necessary appurtenances, including but not limited to parking areas, access roads, utilities and equipment buildings, shall be shared by site users whenever possible.

(c) Co-Location. All facilities shall make available unused space for co-location of other telecommunication facilities, including space for these entities providing similar, competing services. Co-location is not required if the host facility can demonstrate that the addition of the new service or facilities would impair existing service or cause the host to go offline for a significant period of time.

(d) Interference. Approval for the establishment of facilities improved with an existing microwave band or other public service use or facility, which creates interference or interference is anticipated as a result of said establishment of additional facilities, shall include provisions for the relocation of said existing public use facilities. All costs associated with said relocation shall be borne by the applicant for the additional facilities. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.111 Structural, Design and Environmental Standards and Required Findings.

In addition to meeting the general requirements set forth above in Section 1016.104, the application must meet the following standards:

(a) Structural Requirements. A building permit shall be required for the construction, installation, repair or alteration of any support structure for communication equipment, except for facilities six (6) feet or lower in height.

Exemptions from the building permit requirements shall not be deemed to grant authorization for any work to be done in violation of the provisions of the technical codes or other laws or ordinances of the City of Hercules.

(b) Basic Tower and Building Design. All telecommunication facilities, except exempt facilities as defined in Section 1016.105, shall be designed to blend into the surrounding environment to the greatest extent feasible. To this end, all of the following measures shall be implemented:

(1) Telecommunication towers shall be constructed out of metal or other nonflammable material, unless specifically conditioned by the City to be otherwise;

(2) All ground-mounted telecommunication towers shall be self-supporting monopoles except where satisfactory evidence is submitted to the appropriate decision-making body that a guyed/lattice tower is required;

(3) Telecommunication support facilities (i.e., vaults, equipment rooms, utilities, and equipment enclosures) shall be constructed out of nonreflective materials (visible exterior surfaces only) and adequately screened;

(4) Telecommunication support facilities shall be no taller than one (1) story (fifteen (15) feet) in height, shall be designed to blend with existing architecture in the area or shall be screened from sight by mature landscaping, and shall be located or designed to minimize their visibility; and

(5) All buildings, poles, towers, antenna supports, antennas, and other components of each telecommunications facility shall, where technically feasible, be initially painted and thereafter repainted as necessary with a flat paint. The color shall be approved by the appropriate decision-making body.

The City shall have the authority to require special design of the telecommunication facilities where findings of particular sensitivity are made (e.g., proximity to historic or aesthetically significant structures, views and/or community features).

(c) Location. All telecommunication facilities shall be located so as to minimize their visibility and the number of distinct facilities present. To this end all of the following measures shall be implemented for all telecommunications facilities, except exempt facilities as defined in Section 1016.105:

(1) No telecommunication facility shall be installed at a location where special painting or lighting will be required by the FAA regulations unless technical evidence acceptable to the City Manager Designee is submitted showing that this is the only technically feasible location for this facility;

(2) Facilities proposed to be located on an exposed ridgeline shall not be located within one hundred (100) vertical feet of the ridgeline, unless an exception is granted by the Planning Commission. The Planning Commission may grant an exception if it finds that due to the specific location and design of the proposed facility, the facility will not be visible from surrounding properties or public view and due to existing development or existing landscaping at the site, the proposed facility will be substantially screened from the view of surrounding properties and public view and will not result in an adverse visual impact. Special design considerations, such as designing facilities to appear as natural features found in the immediate area, such as trees or rocks, may be considered in approving facilities within one hundred (100) feet of exposed ridgelines;

(3) No telecommunication facility that is readily visible from offsite shall be installed on a site that is not already developed with telecommunication facilities or other public or quasi-public uses, or closer than one-half mile from another readily visible telecommunication facility unless it is a co-located facility or situated on a multiple-user site, unless technical evidence acceptable to the City Manager Designee or Planning Commission, as appropriate, is submitted showing a clear need for this facility and the infeasibility of co-locating it elsewhere; and

(4) Proposed telecommunication towers shall be set back at least twenty (20) percent of the tower height from all property lines and at least one hundred (100) feet from any public park or outdoor recreation area. Guy wire anchors shall be set back at least twenty (20) feet from any property line.

(d) Lighting. All telecommunication facilities shall be unlit except when authorized personnel are actually present at night, and except for exempt facilities as defined in Section 10-16.105.

(e) Roads and Parking. Except exempt facilities as defined in Section 10-16.105, all telecommunication facilities shall be served by the minimum roads and parking areas necessary and shall use existing roads and parking areas whenever possible. Any existing roads and parking areas, if required, shall be upgraded the minimum amount necessary to meet standards specified by the Rodeo Hercules Fire District and Public Works Director.

(f) Vegetation Protection and Facility Screening.

(1) Except exempt facilities as defined in Section 10-16.105, all telecommunications facilities shall be installed in such a manner so as to maintain and enhance existing native vegetation and shall include suitable mature landscaping to screen the facility, where necessary. For purposes of this section, “mature landscaping” means trees, shrubs or other vegetation of a size that will provide the appropriate level of visual screening immediately upon installation.

(2) No actions shall be taken subsequent to project completion with respect to the vegetation present that would increase the visibility of the facility itself or the access road and power/telecommunication lines serving it. The owner(s)/operator(s) of the facility shall be responsible for maintenance and replacement of all required landscaping.

(g) Fire Prevention. All telecommunication facilities shall be designed and operated in such a manner so as to minimize the risk of igniting a fire or intensifying one that otherwise occurs. To this end all of the following measures shall be implemented for all telecommunication facilities, when determined necessary by the Rodeo Hercules Fire District, except exempt facilities as defined in Section 10-16.105:

(1) At least one (1) hour fire resistant interior surfaces shall be used in the construction of all buildings;

(2) Monitored automatic fire extinguishing systems approved by the Fire District shall be installed in all equipment buildings and enclosures;

(3) Rapid entry (KNOX) systems shall be installed as required by the Fire District;

(4) Type and location of vegetation, screening materials and other materials within ten (10) feet of the facility and all new structures, including telecommunication towers, shall have review for fire safety purposes by the Fire District. Requirements established by the Fire District shall be followed; and

(5) All tree trimmings and trash generated by construction of the facility shall be removed from the property and properly disposed of prior to building permit finalization or commencement of operation, whichever comes first.

(h) Environmental Resource Protection. All telecommunication facilities shall be located so as to minimize the effect on environmental resources. To that end, all facilities deemed to constitute a project as defined by CEQA shall be subject to environmental review. Applicant may submit information they believe relevant to the determination of whether or not the proposed facilities require environmental review.

(i) Noise and Traffic. All telecommunication facilities shall be constructed and operated in such a manner as to minimize the amount of disruption caused to nearby properties. To that end, all the following measures shall be implemented for all telecommunication facilities, except exempt facilities as defined in Section 10-16.105:

(1) Outdoor noise-producing construction activities shall only take place on weekdays (Monday through Friday, non-holiday) between the hours of 8:30 a.m. and 5:00 p.m. unless allowed at other times by the Planning Commission; and

(2) Backup generators shall only be operated during natural disasters, power outages and for testing and maintenance purposes. If the facility is located within one hundred (100) feet of a residential dwelling unit, noise attenuation measures shall be included to reduce noise levels at the facility to a maximum exterior noise level of sixty (60) Ldn at the property line and a maximum interior noise level of forty-five (45) Ldn. Testing and maintenance shall only take place on weekdays between the hours of 8:30 a.m. and 4:30 p.m.

(j) Visual Compatibility. Facility structures and equipment shall be located, designed and screened to blend with the existing natural or built surroundings, as well as any existing supporting structures, so as to reduce visual impacts to the extent feasible. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.112 NIER Exposure.

(a) Public Health. No telecommunication facility shall be located or operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health. To that end no telecommunication facility or combination of facilities shall produce at any time power densities in any inhabited area that exceed the FCC-adopted standard for human exposure, as amended, or any more restrictive standard subsequently adopted or promulgated by the federal government.

(b) Initial Compliance with NIER Levels. Initial compliance with this requirement shall be demonstrated for any facility within four hundred (400) feet of residential uses or sensitive receptors such as schools, churches, hospitals, etc., and all broadcast radio and television facilities, regardless of adjacent land uses, through submission, at the time of application for the necessary permit or entitlement, of NIER (Nonionizing Electromagnetic Radiation) calculations specifying NIER levels in the inhabited area where the levels produced are projected to be highest. If these calculated NIER levels exceed eighty (80) percent of the NIER standard established by this Section, the applicant shall hire a qualified electrical engineer licensed by the State of California to measure NIER levels at said location after the facility is in operation or, where appropriate, to conduct laboratory tests measuring levels. A report of these measurements and the findings with respect to compliance with the established NIER standard shall be submitted to the City Manager Designee. Said facility shall not commence normal operations until it complies with this standard. Proof of said compliance shall be a certification provided by the engineer who prepared the original report. In order to assure the objectivity of the analysis, the City may require, at the applicant’s expense, independent verification of the results of the analysis. Because of their intermittent nature, facilities solely for personal use, such as citizens band radio antenna or antenna operated by a federally licensed amateur radio operator as part of the Amateur Radio Service, or for the incidental use of a co-located commercial activity, shall be required to comply with applicable FCC rules for NIER emissions, but they shall be routinely exempt from the submission requirements in this Section unless otherwise required by the City Manager Designee.

(c) Ongoing Compliance with NIER Levels. Every telecommunication facility within four hundred (400) feet of an inhabited area and all broadcast radio and television facilities shall demonstrate continued compliance with the NIER standard established by this Section. Every five (5) years a report listing each transmitter and antenna present at the facility and the effective radiated power radiated shall be submitted to the City Manager Designee. If either the equipment or effective radiated power has changed, calculations specifying NIER levels in the inhabited areas where said levels are projected to be highest shall be prepared. NIER calculations shall also be prepared every time the adopted NIER standard changes. If calculated levels in either of these cases exceed eighty (80) percent of the standard established by this Section, the operator of the facility shall hire a qualified electrical engineer licensed by the State of California to measure the actual NIER levels produced or, where appropriate, to conduct laboratory tests measuring levels. A report of these calculations, required measurements, if any, and the author’s/engineer’s findings with respect to compliance with the current NIER standard shall be submitted to the City Manager Designee within five (5) years of facility approval and every five (5) thereafter. In the case of a change in the standard, the required report shall be submitted within ninety (90) days of the date said change becomes effective.

(d) Failed Compliance. Failure to supply the required reports or to remain in continued compliance with the NIER standard established by this Section shall be grounds for revocation of the use permit or other entitlement. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.113 Enforcement.

(a) Standard Agreements Required. Except for exempt facilities as defined in Section 10-16.105, a maintenance/facility removal agreement signed by the applicant and the property owner shall be submitted to the City Manager Designee prior to approval of the use permit or other entitlement for use authorizing the establishment or modification of any telecommunications facility which includes a telecommunication tower or one (1) or more new buildings/equipment enclosures larger in aggregate than three hundred (300) square feet. Said agreement shall bind the applicant and the property owner and their respective successors-in-interest to properly maintain the exterior appearance of and ultimately removal of the facility in compliance with the provisions of this Chapter and any conditions of approval. It shall further bind them to pay all costs for monitoring compliance with, and enforcement of, the agreement and to reimburse the City for all costs incurred to perform any work required of the applicant by this agreement that the applicant fails to perform. It shall also specifically authorize the City and/or its agents to enter onto the property and undertake said work so long as nuisance abatement is performed according to the procedure set forth in Section 4-10.01 et seq. of this Code.

(b) Payment Responsibility. All costs incurred by the City to undertake any work required to be performed by the applicant pursuant to the agreement referred to in Section 10-16.113 including, but not limited to, administrative and job supervision costs, shall be borne solely by the applicant. The agreement shall specifically require the applicant to immediately cease operation of the telecommunication facility involved if the applicant fails to pay the moneys demanded within ten (10) working days. It shall further require that operation remain suspended until such costs are paid in full.

(c) Agreement Stipulations. Standard agreement required by Section 10-16.113(a) shall include, but not be limited to, the following stipulations agreed to by the applicant:

(1) Telecommunication facilities lessors shall be strictly liable for any and all sudden and accidental pollution and gradual pollution resulting from their use within the City of Hercules. This liability shall include cleanup, intentional injury or damage to persons or property. Additionally, telecommunication facilities lessors shall be responsible for any sanctions, fines, or other monetary costs imposed as a result of the release of pollutants from their operations. Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, include smoke, vapor, soot, fumes, acids, alkalis, chemicals, electromagnetic waves and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

(2) The telecommunication facility provider shall defend, indemnify, and hold harmless the City or any of its boards, commissions, agents, officers, and employees from any claim, action or proceeding against the City, its boards, commission, agents, officers, or employees to attack, set aside, void, or annul the approval of the project when such claim or action is brought within the time period provided for in applicable State and/or local statutes. The City shall promptly notify the provider(s) of any such claim, action or proceeding. The City shall have the option of coordinating the defense. Nothing contained in this stipulation shall prohibit the City from participating in a defense of any claim, action, or proceeding if the City bears its own attorney’s fees and costs, and the City defends the action in good faith.

(3) The provider shall provide to the City written notice of its intent to vacate a site sixty (60) days prior to vacation. Unless a new use permit or another entitlement of use as a telecommunications facility is operative, within sixty (60) days after vacation all improvements installed including their foundations down to three (3) feet (three (3) feet below ground surface) shall be removed from the property and the site restored to its natural pre-construction state. All costs associated with removal of facilities and site restoration shall be borne by the permittee. Any access road installed shall also be removed and the ground returned to its natural condition unless the property owner establishes to the satisfaction of the City Manager Designee that these sections of road are necessary to serve some other allowed use of the property that is permitted or is currently present or to provide access to adjoining parcels. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.114 Penalty.

(a) Purpose. The purpose of these regulations is to ensure compliance with this Title. These provisions shall be deemed cumulative and not exclusive.

(b) Official Action. All departments, officials and public employees of the, City vested with the authority to issue permits, certificates or licenses shall adhere to, and require conformance with, this Title.

(c) Inspection and Right of Entry. Whenever necessary to make an inspection to enforce any part of this Title, or whenever there is reasonable cause to believe there exists an ordinance violation in any building or upon any premises within the jurisdiction of the City, any authorized official of the City may, upon presentation of proper credentials, enter such building or premises at all reasonable times to inspect the same or to perform any duty imposed upon him by ordinance; provided, that except in emergency situations or when consent of the owner and/or occupant to the inspection has been otherwise obtained, he shall give the owner and/or occupant, if they can be located after reasonable effort, twenty-four (24) hours’ written notice of the authorized official’s intention to inspect. The notice transmitted to the owner and/or occupant shall state that the property owner has the right to refuse entry and that in the event such entry is refused, inspection may be made only upon issuance of a search warrant by a duly authorized judicial officer. In the event the owner and/or occupant refuses entry after such request has been made, the official is empowered to seek assistance from any court of competent jurisdiction in obtaining such entry.

(d) Abatement. Any use which is established, operated, erected, moved, altered, painted or maintained contrary to this Chapter is unlawful and a public nuisance subject to abatement in accordance with Section 4-10.01 et seq. and the penalties prescribed in this Section. The City Council may order the City Attorney to commence action or proceedings for the abatement and removal of structures and the enjoinment of persons from activities contrary to the provisions of this Title.

(e) Civil Fine for Violation.

(1) Any person who violates any provision of this Chapter is liable in a civil action brought by the City Attorney on behalf of the City in the amount of One Thousand Dollars ($1,000) for each such violation. Any person violating this Section shall be regarded as committing a separate offense on each day that the violation occurs or continues.

(2) If two (2) or more persons are responsible for any violation of the provisions of this Chapter, they shall be jointly and severally liable for the civil penalty set forth in subsection (e)(1).

(3) Amounts recovered under this Section shall be deposited into a fund carried upon the financial records of the City which shall be used exclusively for the maintenance and/or removal of telecommunications facilities, including but not limited to equipment cabinets, in the City of Hercules.

(f) Criminal Penalties for Violation. A violation of any provision of this Chapter is an infraction punishable by (1) a fine not exceeding One Hundred Dollars ($100) for the first violation; (2) a fine not exceeding Two Hundred Dollars ($200) for a second violation within one (1) year; and (3) a fine not exceeding Five Hundred Dollars ($500) for each additional violation occurring within one (1) year. Any person violating this Section shall be regarded as committing a separate offense on each day that the violation occurs or continues. At the City Attorney’s discretion, serious violations may be prosecuted as misdemeanors pursuant to Government Code Section 36900.

(g) Injunctions. In addition to all other actions and remedies, civil or penal, authorized by law, the City Attorney is authorized to file an action in court seeking injunctive relief to enjoin a violation of any provision of this Chapter or to prevent a threatened violation of any provision of this Chapter. The injunctive relief sought in any such action may be prohibitory, mandatory, or both. (Ord. 339 § 1 (part), 1997)

Sec. 10-16.115 Appeal Procedures.

Any decision or determination made by the Planning Commission in the administration of this Chapter may be appealed to the City Council in accordance with the procedures set forth in Section 10-1.920. Those same procedures shall also apply to decisions or determinations made by the staff of the Department designated by the City Manager, except that those appeals shall be made to the Planning Commission. (Ord. 339 § 1 (part), 1997)