Chapter 17.104
WIRELESS COMMUNICATIONS FACILITIES Revised 6/18

Sections:

17.104.010    Purpose and intent. Revised 6/18

17.104.020    Definitions. Revised 6/18

17.104.030    Applicability and exemptions. Revised 6/18

17.104.040    Permit requirements. Revised 6/18

17.104.050    Standard conditions of approval. Revised 6/18

17.104.060    Preferred siting and location. Revised 6/18

17.104.070    Development standards. Revised 6/18

17.104.080    Operation and maintenance requirements. Revised 6/18

17.104.090    Temporary wireless communications facilities. Revised 6/18

17.104.100    Limited exemption from standards. Revised 6/18

17.104.110    Severability. Revised 6/18

17.104.010 Purpose and intent. Revised 6/18

A. Purpose. This chapter establishes requirements for the development, siting, collocation, installation, modification, relocation, and operation of wireless communications facilities consistent with applicable state and federal laws. These requirements aim to protect public health, safety, and welfare while balancing the benefits of robust wireless services with the unique community character, aesthetics, and local values of the city of Capitola.

B. Intent. This chapter does not intend to, and shall not be interpreted or applied to:

1. Prohibit or effectively prohibit personal wireless services;

2. Unreasonably discriminate among wireless communications providers of functionally equivalent personal wireless services;

3. Regulate the installation, operation, collocation, modification, or removal of wireless facilities on the basis of the environmental effects of radio frequency (RF) emissions to the extent that such emissions comply with all applicable Federal Communications Commission (FCC) regulations;

4. Prohibit or effectively prohibit any collocation or modification that the city may not deny under state or federal law; or

5. Preempt any applicable state or federal law. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.020 Definitions. Revised 6/18

A. Terms Defined. Terms used in this chapter are defined as follows:

1. “Amateur radio facilities” are antennas and related equipment for the purpose of self-training, intercommunication, or technical investigations carried out by an amateur radio operator who operates without commercial interest, and who holds a written authorization from the Federal Communications Commission to operate an amateur radio facility.

2. “Antenna” means a device or system of wires, poles, rods, dishes, discs, or similar devices used to transmit and/or receive radio or electromagnetic waves.

3. “Applicable FCC decisions” means the same as defined by California Government Code Section 65964.1(d)(1), as may be amended, which defines that term as “In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994 (2009) and In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd. 12865 (2014).”

4. “Array” means one or more antennas mounted at approximately the same level above ground on tower or base station.

5. “Base station” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(1), as may be amended, which defines that term as follows:

a. A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in 47 C.F.R. Section 1.40001(b)(9) or any equipment associated with a tower.

b. “Base station” includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

c. “Base station” includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

d. “Base station” includes any structure other than a tower that, at the time the relevant application is filed with the state or local government under 47 C.F.R. Section 1.40001, supports or houses equipment described in paragraphs (b)(1)(i) through (ii) of 47 C.F.R. Section 1.40001 that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

e. “Base station” excludes any structure that, at the time the relevant application is filed with the state or local government under 47 C.F.R. Section 1.40001, does not support or house equipment described in paragraphs (b)(1)(i) through (ii) of 47 C.F.R. Section 1.40001.

6. “Collocation” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(2), as may be amended, which defines that term as “[t]he mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.” As an illustration and not a limitation, the FCC’s definition effectively means “to add” new equipment to an existing facility and does not necessarily refer to more than one wireless facility installed at a single site.

7. “Eligible facilities request” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(3), as may be amended, which defines that term as “[a]ny request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) collocation of new transmission equipment; (ii) removal of transmission equipment; or (iii) replacement of transmission equipment.”

8. “Eligible support structure” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(4), as may be amended, which defines that term as “[a]ny tower or base station as defined in [47 C.F.R. Section 1.40001]; provided, that it is existing at the time the relevant application is filed with the state or local government under [47 C.F.R. Section 1.40001].”

9. “Existing” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(5), as may be amended, which provides that “[a] constructed tower or base station is existing for purposes of the [FCC rules implementing Section 6409 of the Spectrum Act] if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.”

10. “FCC” means the Federal Communications Commission or its successor agency.

11. “Personal wireless services” has the same meaning as provided in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended, which defines the term as “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.”

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

13. “Service provider” means a wireless communications provider, company or organization, or the agent of a company or organization that provides wireless communications services.

14. “Significant gap” is a gap in the service provider’s own wireless telecommunications facilities, as defined in federal case law interpretations of the Federal Telecommunications Act of 1996.

15. “Site” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(6), as may be amended, which provides that “[f]or towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.”

16. “Stealth facility” is any facility designed to blend into the surrounding environment, and is visually unobtrusive. Examples of stealth facilities may include architecturally screened roof-mounted antennas, facade-mounted antennas painted and treated as architectural elements to blend with the existing building, or elements designed to appear as vegetation or trees. Also referred to as concealed communications facilities.

17. “Substantial change” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(7), as may be amended, which defines that term differently based on the particular facility type and location. For clarity, the definition in this chapter organizes and paraphrases the FCC’s criteria and thresholds for a substantial change according to the facility type and location. The definition of substantial change contained in this section shall be interpreted and applied so as to be consistent with 47 C.F.R. Section 1.40001(b)(7) (as may be amended) and the applicable FCC decisions, rules and orders and court rulings relating to the same. In the event of any conflict between the definition of substantial change contained in this section and the definition contained in 47 C.F.R. Section 1.40001(b)(7) (as may be amended), 47 C.F.R. Section 1.40001(b)(7) (as may be amended) shall govern and control.

a. For towers outside the public right-of-way, a substantial change occurs when:

i. The proposed collocation or modification increases the overall height more than ten percent or the height of one additional antenna array not to exceed twenty feet (whichever is greater); or

ii. The proposed collocation or modification involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance (whichever is greater); or

iii. The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four cabinets; or

iv. The proposed collocation or modification involves excavation outside the current boundaries of the leased or owned property surrounding the wireless tower, including any access or utility easements currently related to the site.

b. For towers in the public right-of-way and for all base stations, a substantial change occurs when:

i. The proposed collocation or modification increases the overall height more than ten percent or ten feet (whichever is greater); or

ii. The proposed collocation or modification involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; or

iii. The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four cabinets; or

iv. The proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no pre-existing ground cabinets associated with the structure; or

v. The proposed collocation or modification involves the installation of any ground cabinets that are more than ten percent larger in height or overall volume than any other ground cabinets associated with the structure; or

vi. The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.

c. In addition, for all towers and base stations wherever located, a substantial change occurs when:

i. The proposed collocation or modification would defeat the existing concealment elements of the support structure as determined by the community development director; or

ii. The proposed collocation or modification violates a prior condition of approval; provided, however, that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets, or excavation that is inconsistent with the thresholds for a substantial change described in this section.

d. Interpretation of Thresholds.

i. The thresholds for a substantial change described above are disjunctive. The failure to meet any one or more of the applicable thresholds means that a substantial change would occur.

ii. The thresholds for height increases are cumulative limits. For sites with horizontally separated deployments, the cumulative limit is measured from the originally permitted support structure without regard to any increases in size due to wireless equipment not included in the original design. For sites with vertically separated deployments, the cumulative limit is measured from the permitted site dimensions as they existed on February 22, 2012 – the date that Congress passed Section 6409(a).

18. “Temporary wireless communications facility” means a wireless communications facility located on a parcel of land and consisting of a vehicle-mounted facility, a building-mounted antenna, or a similar facility, and associated equipment, that is used to provide temporary coverage for a large-scale event or an emergency, or to provide temporary replacement coverage due to the removal of an existing permitted, permanent wireless communications facility necessitated by the demolition or major alteration of a nearby property.

19. “Tower” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(9), as may be amended, which defines that term as “[a]ny structure built for the sole or primary purpose of supporting any [FCC]-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.” Examples include, but are not limited to, monopoles, mono-trees, and lattice towers.

20. “Transmission equipment” means the same as defined by the FCC in 47 C.F.R. Section 140001(b)(8), as may be amended, which defines that term as “[e]quipment that facilitates transmission for any [FCC]-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.”

21. “Wireless” means any FCC-licensed or authorized wireless communications service transmitted over frequencies in the electromagnetic spectrum.

22. “Wireless communications facility” is a facility that sends and/or receives radio frequency signals, AM/FM, microwave, and/or electromagnetic waves for the purpose of providing voice, data, images or other information, including, but not limited to, cellular and/or digital telephone service, personal communications services, and paging services. Wireless communications facilities include antennas and all other types of equipment for the transmission or receipt of such signals; towers or similar structures built to support such equipment; equipment cabinets, base stations, and other accessory development; and screening and concealment elements. (Also referred to as “facility.”)

23. “Wireless communications provider” is any company or organization that provides or who represents a company or organization that provides wireless communications services. (Also referred to as “service provider.”)

24. “Zoning code” means the city of Capitola zoning code.

B. Terms Not Defined. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.030 Applicability and exemptions. Revised 6/18

A. Applicability. This chapter applies to all new facilities and all modifications to existing facilities proposed after the effective date of this chapter unless exempted by subsection B of this section (Exemptions).

B. Exemptions. This chapter does not apply to:

1. Amateur radio facilities;

2. Direct-to-home satellite dishes, TV antennas, wireless cable antennas, and other OTARD antennas covered by the over-the-air reception devices rule in 47 Code of Federal Regulations (C.F.R.) Section 1.4000 et seq.;

3. Noncommercial wireless communications facilities owned and operated by a public agency, including but not limited to the city of Capitola; and

4. All antennas and wireless facilities identified by the FCC or the California Public Utilities Commission (CPUC) as exempt from local regulations. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.040 Permit requirements. Revised 6/18

A. Required Permits. Wireless communications facilities are grouped into four tiers, each with its own permit requirement as shown in Table 17.104-1.

 

Table 17.104-1: Wireless Communications Facility Tiers and Required Permits*

 

Types of Facilities

Permit Required

Tier 1

Modifications to an existing facility that qualify as an “eligible facility request” as defined in Section 17.104.020(A)(7).

Section 6409(a) Permit

Tier 2

Building- and facade-mounted facilities in the C-C, C-R, or I zoning district when the proposed facility (1) is a stealth facility, (2) does not generate noise in excess of the city’s noise regulations and (3) does not exceed the applicable height limit in the applicable zoning district.

Pole-mounted facilities in the public right-of-way consistent with Section 17.104.070(D) when the facility is either (1) incorporated into a steel pole with all antennas, equipment, and cabling entirely concealed from view, or (2) mounted to a wood pole with all equipment other than antennas located substantially underground and pole-mounted equipment, where necessary, extends no more than 2 feet horizontally and 5 feet vertically from the pole.

A collocation that is not a Tier 1 facility.

A modification to an eligible support structure that is not a Tier 1 facility.

Administrative Permit

Tier 3

Building- and facade-mounted facilities in the C-C, C-R, or I zoning district that are not Tier 2 facilities.

Building- and facade-mounted facilities in the MU-V, MU-N, VS, or CF zoning district.

Pole-mounted facilities in the public right-of-way consistent with Section 17.104.070(D) that are not Tier 2 facilities.

Minor Use Permit

Tier 4

New towers in any zoning district.

Any facility in the R-1, RM, or MH zoning district [1].

Any facility within a public park or open space.

Any facility that is not a Tier 1, 2, or 3 Facility.

Conditional Use Permit

Notes:

[1] Except pole-mounted facilities located in a public right-of-way that qualify as either a Tier 2 or 3 facility.

* Any wireless communications facility located in the city’s coastal zone may also require a coastal development permit per Chapter 17.44 (Coastal Overlay Zone), in which case the public notice and hearing requirements (and required findings) set forth in Chapter 17.44 will also apply.

B. Review Authority.

1. Tier 1 and Tier 2 Facilities. The community development director shall review and take action on all Section 6409(a) permit applications for Tier 1 facilities and administrative permit applications for Tier 2 facilities.

2. Tier 3 Facilities. The community development director shall review and take action on minor use permit applications for Tier 3 facilities. If a member of the public requests a public hearing in accordance with subsection (H)(3) of this section (Tier 3 Facilities (Minor Use Permit)), the community development director may refer the application to the planning commission for review and final decision.

3. Tier 4 Facilities. The planning commission shall review and take action on conditional use permit applications for Tier 4 facilities.

C. Conflicting Provisions. Conditional use permits required for a wireless communications facility shall be processed in compliance with Chapter 17.124 (Use Permits) and with this chapter. In the event of any conflict between this chapter and Chapter 17.124 (Use Permits), this chapter shall govern and control.

D. Coastal Zone. A coastal development permit may also be required for any wireless communications facility located (or proposed to be located) in the city’s coastal zone. Coastal development permits required for wireless communications facilities shall be processed in conformance with Chapter 17.44 (Coastal Overlay Zone, as may be amended) and with this chapter. In the event of any conflict between this chapter and Chapter 17.44 (as may be amended), Chapter 17.44 shall govern and control, to the extent consistent with applicable federal law (including, but not limited to, the Telecommunications Act of 1996, Section 6409(a), and applicable FCC decisions, rules and orders) and not preempted by applicable state or federal law.

E. Other Permits. A permit issued under this chapter is not in lieu of any other permit required under the municipal code (including, but not limited to, coastal development permits, encroachment permits, building permits, etc.), except as specifically provided in this chapter. In addition to any Section 6409(a) permit, administrative use permit, minor use permit, or conditional use permit that may be required under this chapter, the applicant must obtain all other required permits and/or approvals from other city departments, and/or state or federal agencies.

F. Pre-Application Conference. The city encourages prospective applicants to request a pre-application conference with the community development department in accordance with Section 17.112.020(A) (Pre-Application Conference) before completing and filing a permit application.

G. Permit Application and Review.

1. Application Required. All permits granted under this chapter shall require an application filed in compliance with this chapter and Chapter 17.112 (Permit Application and Review).

2. Application Contents. All applications shall include the following:

a. The applicable application fee(s) established by the city. Fees required to process permit applications are identified in the planning fee schedule approved by the city council.

b. A fully completed and executed application using an official city application form.

c. The application must state what approval is being sought (i.e., conditional use permit, minor use permit, administrative permit, or Section 6409(a) permit). If the applicant believes the application is for a Section 6409(a) permit, the applicant must provide a detailed explanation as to why the applicant believes that the application qualifies as an eligible facilities request subject to a Section 6409(a) permit.

d. A completed and signed application checklist available from the city, including all the information, materials, and fees specified in the city’s application checklist for proposed wireless communications facilities.

e. If the proposed facility is to be located on a city owned building or structure, the application must be signed by an authorized representative of the city.

f. For Section 6409(a) permits and administrative permits involving a collocation or modification to an eligible support structure, the application must be accompanied by all prior approvals for the existing facility (including but not limited to all conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment), as well as all permit applications with required application materials for each separate permit required by the city for the proposed facility, including but not limited to a building permit and an encroachment permit (if applicable).

g. All other materials and information required by the community development director as publicly stated in the application checklist(s).

3. Application Review.

a. The community development department shall review applications in accordance with Chapter 17.112 (Permit Application and Review). In the event of any conflict between this chapter and Chapter 17.112 (Permit Application and Review), this chapter shall govern and control.

b. The application processing time for applications subject to this chapter shall be in conformance with the time periods and procedures established by applicable FCC decisions, adjusted for any tolling due to incomplete application notices or mutually agreed upon extensions of time.

H. Public Notice and Hearing.

1. All Facilities. Public notice of pending decision or hearing for all facilities shall contain the following:

a. A description of the proposed facility, collocation, or modification.

b. The location of the subject property.

c. Required permits and approvals.

d. How the public can obtain additional information on the proposed project.

2. Tier 1 Facilities (Section 6409(a) Permit) and Tier 2 Facilities (Administrative Permit).

a. City approval or denial of a Tier 1 or Tier 2 facility is a ministerial action which does not require a public hearing.

b. The applicant shall post notice of pending action on a Tier 1 or Tier 2 facility application on the subject property at least ten calendar days prior to the city taking action on the application.

c. In addition to the information identified in subsection (H)(1) of this section (All Facilities), the notice of a pending action for Tier 1 facilities shall contain the following statement:

Federal law may require approval of this application. Further, Federal Communications Commission Regulations may deem this application granted by the operation of law unless the City timely approves or denies the application, or the City and applicant reach a mutual tolling agreement.

3. Tier 3 Facilities (Minor Use Permit).

a. A public hearing for a Tier 3 facility is required only if the community development director receives a written request for a public hearing from the public.

b. The city shall mail public notice of a pending action on a Tier 3 facility to the owners of the real property located within a radius of one hundred feet from the exterior boundaries of the subject property at least ten calendar days prior to the city taking action on the application.

c. In addition to the information identified in subsection (H)(1) of this section (All Facilities), the notice of a pending action shall contain a statement that the city is considering the application and that the community development director will hold a public hearing for the application only upon receiving by a specified date written request for a hearing.

d. If the city receives a request for a public hearing by the specified date, the community development director shall hold a noticed public hearing on the application or refer the application to the planning commission for review and final decision. Public notice of the requested public hearing will be mailed to the owners of real property located within a radius of one hundred feet from the exterior boundaries of the subject property.

e. If no written request for a public hearing is received by the specified date, the community development director shall act on the application without a public hearing.

4. Tier 4 Facilities (Conditional Use Permit).

a. The planning commission shall review and take action on Tier 4 facility applications at a noticed public hearing in conformance with this chapter and Chapter 17.124 (Use Permits), as may be amended from time to time.

b. At least ten calendar days prior to the scheduled hearing date, the city shall provide public notice of the hearing by:

i. Mailing public notice of the hearing to the following recipients:

(A) The owners of the subject property or the owner’s authorized agent and the applicant;

(B) The owners of the real property located within a radius of six hundred feet from the exterior boundaries of the subject property;

(C) Each local agency expected to provide essential facilities or services to the subject property;

(D) Any person who has filed a written request for notice with the community development department; and

(E) Any other person, whose property, in the judgment of the community development department, might be affected by the proposed project; and

ii. Posting a printed notice at the project site.

c. If the number of property owners to whom notice would be mailed in compliance with subsection (H)(4)(b)(i) of this section is more than one thousand, the community development department may choose to provide notice by placing a display advertisement of at least one-eighth page in one or more local newspapers of general circulation at least ten calendar days prior to the scheduled hearing date.

d. In addition to the types of notice required above, the community development department may provide additional notice as determined necessary or desirable.

e. The validity of the hearing shall not be affected by the failure of any resident, property owner, or community member to receive a mailed notice.

f. In addition to the information identified in subsection (H)(1) of this section (All Facilities), the notice of a public hearing shall identify the date, location, and time of the hearing.

I. Applicant Notifications for Deemed Granted Remedies. Under state and/or federal law, the city’s failure to act on a wireless communications facility permit application within a reasonable period of time in accordance with the time periods and procedures established by applicable FCC decisions, accounting for tolling, may result in the permit being deemed granted by operation of law. To the extent federal or state law provides a “deemed granted” remedy for wireless communications facility applications not timely acted upon by the city, no such application shall be deemed granted unless and until the applicant satisfies the following requirements:

1. For all Tier 2, Tier 3 and Tier 4 facility applications:

a. Completes all public noticing required pursuant to subsection H of this section (Public Notice and Hearing) and California Government Code Section 65091 to the community development director’s satisfaction.

b. No more than thirty days before the date by which the city must take final action on the application (as determined in accordance with the time periods and procedures established by applicable FCC decisions and accounting for tolling), the applicant must provide the following written notice to the city and other specified recipients as follows:

i. For Tier 2 facilities, the written notice shall be delivered to the city and posted on the subject property.

ii. For Tier 3 facilities, the written notice shall be delivered to the city and mailed to the owners of the subject property (or the owner’s authorized agent), and the owners of the real property located within a radius of one hundred feet from the exterior boundaries of the subject property and any person who has filed a written request for notice with the community development department.

iii. For Tier 4 facilities, the written notice shall be delivered to the city and mailed to the owners of the subject property (or the owner’s authorized agent), the owners of the real property located within a radius of six hundred feet from the exterior boundaries of the subject property, each local agency expected to provide essential facilities or services to the subject property, any person who has filed a written request for notice with the community development department, and any other person identified by the community development department as a person whose property might be affected by the proposed project.

iv. The notice shall be delivered to the city in person or by certified United States mail.

v. The notice must state that the applicant has submitted an application to the city, describe the location and general characteristics of the proposed facility, and include the following statement:

Pursuant to California Government Code Section 65964.1, state law may deem the application approved in 30 days unless the City approves or denies the application, or the City and applicant reach a mutual tolling agreement.

2. For all facility applications:

a. Submits a complete application package consistent with the application procedures specified in this chapter and applicable federal and state laws and regulations.

b. Following the date by which the city must take final action on the application (as determined in accordance with the time periods and procedures established by applicable FCC decisions and accounting for tolling), the applicant must provide notice to the city that the application is deemed granted by operation of law.

J. Basis for Approval – Tier 1 Facilities.

1. This subsection shall be interpreted and applied so as to be consistent with the Telecommunications Act of 1996, Section 6409(a), and the applicable FCC and court decisions and determinations relating to the same. In the event that a court of competent jurisdiction invalidates all or any portion of Section 6409(a) or a FCC rule or regulation that interprets Section 6409(a), such that federal law would not mandate approval for any eligible facilities request, then all proposed modifications to existing facilities subject to this section must be approved by an administrative permit, minor use permit, or conditional use permit, as applicable, and subject to the discretion of the community development director.

2. The community development director shall approve a Section 6409(a) permit for a Tier 1 facility upon finding that the proposed facility qualifies as an eligible facilities request and does not cause a substantial change as defined in Section 17.104.020 (Definitions).

3. In addition to any other alternative recourse permitted under federal law, the community development director may deny a Section 6409(a) permit upon finding that the proposed facility:

a. Defeats the effect of existing concealment elements of the support structure;

b. Violates any legally enforceable standard or permit condition related to compliance with generally applicable building, structural, electrical and/or safety codes;

c. Violates any legally enforceable standard or permit condition reasonably related to public health and/or safety; or

d. Otherwise does not qualify for mandatory approval under Section 6409(a) for any lawful reason.

K. Basis for Approval – Tier 2 Facilities. To approve an administrative permit for a Tier 2 facility, the community development director must find that the proposed facility complies with the requirements of this chapter and all other applicable requirements of the zoning code.

L. Basis for Approval – Tier 3 and 4 Facilities. To approve a minor use permit or conditional use permit for a proposed Tier 3 or Tier 4 facility, the review authority must make all of the following findings:

1. The facility is consistent with the requirements of this chapter.

2. All the findings required for the minor use permit or conditional use permit as specified in Chapter 17.124 (Use Permits) can be made for the proposed facility.

M. Appeals.

1. Tier 1 Facilities. Community development director decisions on a Section 6409(a) permit are final and may not be appealed.

2. Tier 2 and 3 Facilities. Community development director decisions on an administrative permit for a Tier 2 facility and a minor use permit for a Tier 3 facility may be appealed to the planning commission in accordance with Chapter 17.152 (Appeals). Planning commission decisions on such an appeal may be appealed to the city council.

3. Tier 4 Facilities. Planning commission decisions on a conditional use permit for a Tier 4 facility may be appealed to the city council in accordance with Chapter 17.152 (Appeals).

N. Permit Revocation.

1. Basis for Revocation. The city may revoke a permit for a wireless communications facility for noncompliance with any enforceable permit, permit condition, or law applicable to the facility.

2. Revocation Procedures.

a. When the community development director finds reason to believe that grounds for permit revocation exist, the director shall send written notice to the permit holder that states the nature of the violation or noncompliance and a means to correct the violation or noncompliance. The permit holder shall have a reasonable time from the date of the notice (not to exceed sixty calendar days from the date of the notice or a lesser period if warranted by a public emergency) to correct the violation or cure the noncompliance, or show that the violation has not occurred or the facility is in full compliance.

b. If, after receipt of the notice and opportunity to cure described in subsection (N)(2)(a) of this section, the permit holder does not correct the violation or cure the noncompliance (or demonstrate full compliance), the community development director may schedule a public hearing before the planning commission at which the planning commission may modify or revoke the permit.

c. For permits issued by the community development director, the community development director may revoke the permit without such public hearing. The community development director decision to revoke may be appealed to the planning commission.

d. The planning commission may revoke the permit upon making one or more of the following findings:

i. The permit holder has not complied with any enforceable permit, permit condition, or law applicable to the facility.

ii. The wireless communications provider has failed to comply with the conditions of approval imposed.

iii. The permit holder and/or wireless communications provider has failed to submit evidence that the wireless communications facility complies with the current FCC radio frequency standards.

iv. The wireless communications facility fails to comply with the requirements of this chapter.

e. The planning commission’s decision may be appealed to the city council in accordance with Chapter 17.152 (Appeals).

f. Upon revocation, the city may take any legally permissible action or combination of actions necessary to protect public health, safety and welfare.

O. Cessation of Operations.

1. Notice to City. Wireless communications providers shall provide the city with a notice of intent to vacate a site a minimum of thirty days prior to the vacation.

2. New Permit Required. A new permit shall be required if a site is to be used again for the same purpose as permitted under the original permit if a consecutive period of six months has lapsed since cessation of operations.

3. Removal of Equipment. The service provider or property owner shall remove all obsolete and/or unused facilities and associated equipment from the site within one hundred eighty days of the earlier of:

a. Termination of the lease with the property owner; or

b. Cessation of operations.

P. Abandonment.

1. To promote the public health, safety and welfare, the community development director may declare a facility abandoned or discontinued when:

a. The permit holder or service provider abandoned or discontinued the use of a facility for a continuous period of ninety days; or

b. The permit holder or service provider fails to respond within thirty days to a written notice from the community development director that states the basis for the community development director’s belief that the facility has been abandoned or discontinued for a continuous period of ninety days; or

c. The permit expires and the permit holder or service provider has failed to file a timely application for renewal.

2. After the community development director declares a facility abandoned or discontinued, the permit holder or service provider shall have sixty days from the date of the declaration (or longer time as the community development director may approve in writing as reasonably necessary) to:

a. Reactivate the use of the abandoned or discontinued facility subject to the provisions of this chapter and all conditions of approval; or

b. Remove the facility and all improvements installed in connection with the facility (unless directed otherwise by the community development director), and restore the site to its original pre-construction condition in compliance with all applicable codes and consistent with the previously existing surrounding area.

3. If the permit holder and/or service provider fail to act as required in subsection (P)(2) of this section within the prescribed time period, the following shall apply:

a. City may but is not obligated to remove the abandoned facility, restore the site to its original pre-construction condition, and repair any and all damages that occurred in connection with such removal and restoration work.

b. The city may but is not obligated to store the removed facility or any part thereof, and may use, sell or otherwise dispose of it in any manner the city deems appropriate.

c. The last-known permit holder (or its successor-in-interest), the service provider (or its successor-in-interest), and, if on private property, the real property owner shall be jointly liable for all costs and expenses incurred by the city in connection with its removal, restoration, repair and storage, and shall promptly reimburse the city upon receipt of a written demand, including, without limitation, any interest on the balance owing at the maximum lawful rate.

d. The city may but is not obligated to use any financial security required in connection with the granting of the facility permit to recover its costs and interest.

e. Until the costs are paid in full, a lien shall be placed on the facility, all related personal property in connection with the facility and, if applicable, the real private property on which the facility was located for the full amount of all costs for removal, restoration, repair and storage (plus applicable interest). The city clerk shall cause the lien to be recorded with the county of Santa Cruz recorder’s office. Within sixty days after the lien amount is fully satisfied including costs and interest, the city clerk shall cause the lien to be released with the county of Santa Cruz recorder’s office.

4. If a permit holder, service provider, and/or private property owner fails to comply with any provisions of this subsection P (Abandonment), the city may elect to treat the facility as a nuisance to be abated as provided in Title 4 (General Municipal Code Enforcement).

Q. Relocation for Facilities in the Right-of-Way.

1. The public works director may require a permit holder to relocate and/or remove a facility in the public right-of-way as the city deems necessary to:

a. Change, maintain, repair, protect, operate, improve, use, and/or reconfigure the right-of-way for other public projects; or

b. Take any actions necessary to protect the public health, safety and welfare.

2. The public works director shall provide the permit holder with adequate written notice identifying a specified date by which the facility must be relocated and/or removed.

3. The relocation and/or removal of the facility shall be at the permit holder’s sole cost and expense and in accordance with the standards in this chapter applicable to the facility.

R. Transfer of Ownership.

1. Notice. Any wireless communications provider that is buying, leasing, or is considering a transfer of ownership of a previously approved facility shall submit a letter of notification of intent to the community development director a minimum of thirty days prior to the transfer.

2. Responsibilities. In the event that the original permit holder sells its interest in a wireless communications facility, the succeeding carrier shall assume all facility responsibilities and liabilities and shall be held responsible for maintaining consistency with all permit requirements and conditions of approval.

3. Contact Information. A new contact name for the facility shall be provided by the succeeding provider to the community development department within thirty days of transfer of interest of the facility. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.050 Standard conditions of approval. Revised 6/18

All wireless communications facilities approved through a city permit or deemed granted by operation of law shall comply with the following standard conditions of approval. Standard conditions of approval shall apply in addition to other conditions of approval attached to the project by the review authority in compliance with the zoning code and as allowed by state and federal law.

A. All Facilities. The following standard conditions of approval apply to all facilities and shall be included in all administrative permits, minor use permits, and conditional use permits:

1. Compliance with Chapter. The facility shall comply with the requirements of this chapter, including but not limited to requirements in Section 17.104.070 (Development standards) and Section 17.104.080 (Operation and maintenance requirements).

2. Compliance with Applicable Laws. The permit holder and service provider shall at all times comply with all applicable provisions of the zoning code, any permit issued under the zoning code, and all other applicable federal, state and local laws, rules and regulations. Failure by the city to enforce compliance with applicable laws shall not relieve any applicant of its obligations under the municipal code (including, but not limited to, the zoning code), any permit issued under the zoning code, or any other applicable laws, rules, and regulations.

3. Compliance with Approved Plans. The facility shall be built in compliance with the approved plans on file with the community development department.

4. Approval Term. The validly issued administrative permit, minor use permit, or conditional use permit for the wireless communications facility shall be valid for an initial maximum term of ten years, except when California Government Code Section 65964(b), as may be amended, authorizes the city to issue a permit with a shorter term. The approval may be administratively extended by the community development director from the initial approval date for a subsequent five years and may be extended by the director every five years thereafter upon verification that the facility continues to comply with this chapter and conditions of approval under which the facility was originally approved. Costs associated with the review process shall be borne by the service provider, permit holder, and/or property owner.

5. Inspections – Emergencies. The city or its designee may enter onto the facility area to inspect the facility upon reasonable notice to the permit holder. The permit holder and service provider shall cooperate with all inspections. The city reserves the right to enter or direct its designee to enter the facility and support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property.

6. Contact Information for Responsible Parties. The permit holder and service provider shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address, and email address for at least one person. All such contact information for responsible parties shall be provided to the community development director upon request.

7. Graffiti Removal. All graffiti on facilities must be removed at the sole expense of the permit holder within forty-eight hours after notification from the city.

8. FCC (Including, but Not Limited to, RF Exposure) Compliance. All facilities must comply with all standards and regulations (including, but not limited to, those relating to RF exposure) of the FCC and any other state or federal government agency with the authority to regulate such facilities. The city may require submission on an ongoing basis of documentation evidencing that the facility and any collocated facilities comply with applicable RF exposure standards and exposure limits and affirmations, under penalty of perjury, that the subject facilities are FCC compliant and will not cause members of the general public to be exposed to RF levels that exceed the maximum permissible exposure (MPE) levels deemed safe by the FCC.

9. Implementation and Monitoring Costs. The permit holder and service provider (or their respective successors) shall be responsible for the payment of all reasonable costs associated with the monitoring of the conditions of approval, including, without limitation, costs incurred by the community development department, the public works department, the city manager’s department, the office of the city attorney and/or any other appropriate city department or agency. The community development department shall collect costs on behalf of the city.

10. Indemnities. The permit holder, service provider, and, if applicable, the nongovernment owner of the private property upon which the facility, tower and/or base station is installed (or is to be installed) shall defend (with counsel satisfactory to the city), indemnify and hold harmless the city of Capitola, its officers, officials, directors, agents, representatives, and employees (a) from and against any and all damages, liabilities, injuries, losses, costs and expenses and from and against any and all claims, demands, lawsuits, judgments, writs of mandamus and other actions or proceedings brought against the city or its officers, officials, directors, agents, representatives, or employees to challenge, attack, seek to modify, set aside, void or annul the city’s approval of the permit, and (b) from and against any and all damages, liabilities, injuries, losses, costs and expenses and any and all claims, demands, lawsuits, judgments, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of, in connection with or relating to the acts, omissions, negligence, or performance of the permit holder, the service provider, and/or, if applicable, the private property owner, or any of each one’s agents, representatives, employees, officers, directors, licensees, contractors, subcontractors or independent contractors. It is expressly agreed 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, service provider, and/or permit holder (as applicable) shall reimburse city for any and all costs and expenses incurred by the city in the course of the defense.

B. Tier 1 Facilities. In addition to the applicable conditions in subsection A of this section (All Facilities), all Tier 1 facilities shall comply with and all Section 6409(a) permits shall include the following standard conditions of approval:

1. No Permit Term Extension. The city’s grant or grant by operation of law of a Section 6409(a) permit constitutes a federally mandated modification to the underlying permit or approval for the subject tower or base station. The city’s grant or grant by operation of law of a Section 6409(a) permit will not extend the permit term for any conditional use permit, minor use permit, administrative permit or other underlying regulatory approval and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station. If requested in writing by the applicant at the time of application submittal, the permit term for the underlying conditional use permit, minor use permit, administrative permit or other underlying regulatory approval may be administratively extended by the community development director (at his/her discretion) from the initial approval date upon verification that the facility continues to comply with this chapter and conditions of approval under which the facility was originally approved.

2. No Waiver of Standing. The approval of a Section 6409(a) permit (either by express approval or grant by operation of law) does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409(a), any FCC rules that interpret Section 6409(a), or any eligible facilities request. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.060 Preferred siting and location. Revised 6/18

The following siting and location preferences apply to all proposed new facilities and substantial changes to existing facilities. The community development director may require the applicant to submit an alternative sites analysis and evidence to demonstrate that a proposed facility could not be feasibly installed in a preferred site or location.

A. Preferred Siting. To the extent feasible, all proposed facilities should be sited according to the following preferences, ordered from most preferred to least preferred:

1. Sites on a city owned or controlled parcel (excluding public parks and/or open spaces); then

2. Collocations on eligible support structures in the public right-of-way; then

3. Collocations on eligible support structures outside of the public right-of-way; then

4. New base stations in the public right-of-way; then

5. New base stations outside of the public right-of-way; then

6. New towers in the public right-of-way, then

7. New towers outside the public right-of-way.

B. Discouraged Siting – Utility Poles in Planned Utility Undergrounding Project Areas. The city discourages the placement of new facilities on utility poles within the public right-of-way in areas where there is a planned utility undergrounding project. In such cases, new facilities should be placed on utility poles within the planned utility undergrounding project area only if an alternative placement is infeasible or undesirable based on the standards and/or criteria contained in this chapter. If a utility undergrounding project is initiated, the city may require the removal of any facilities on utility poles in the public right-of-way in accordance with Section 17.104.040(Q) (Relocation for Facilities in the Right-of-Way).

C. Preferred Locations – General. All applicants should, to the extent feasible, locate proposed facilities in nonresidential zoning districts.

D. Preferred Locations – Nonresidential Zoning Districts. To the extent feasible, all proposed facilities in nonresidential zoning districts should be located according to the following preferences, ordered from most preferred to least preferred:

1. Parcels in the industrial (I) zoning district; then

2. Parcels in the commercial (C-R and C-C) zoning districts; then

3. Parcels in all other nonresidential zoning districts.

E. Preferred Locations – Residential Zoning Districts. If a facility is proposed in a residential (R-1, RM, MH) zoning district, all facilities should be located according to the following preferences, ordered from most preferred to least preferred:

1. Parcels that contain approved nonresidential uses and do not contain residential uses; then

2. Parcels that contain approved nonresidential uses and also contain residential uses; then

3. All other parcels.

F. Coastal Zone Siting. In addition to the preferred and discouraged siting considerations described in subsections A through E of this section, new wireless communications facilities in the coastal zone shall avoid being sited between the sea and the first road paralleling the sea, within one hundred feet of Soquel Creek, within New Brighton State Beach, or within any environmentally sensitive habitat area to the extent feasible and consistent with federal and state law.

G. Additional Alternative Sites Analysis. If an applicant proposes to locate a new facility or substantial change to an existing facility on a parcel that contains a single-family or multifamily residence, or a site located in the city’s coastal zone on the seaward side of the first through public road parallel to the sea, the applicant shall provide an additional alternative sites analysis that at a minimum shall include a meaningful comparative analysis of all the alternative sites in the more preferred locations that the applicant considered and states the underlying factual basis for concluding why each alternative in a more preferred location was (1) technically infeasible, (2) not potentially available and/or (3) more intrusive. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.070 Development standards. Revised 6/18

A. General Design Standards. All new facilities and substantial changes to existing facilities shall conform to the following design standards:

1. Concealment. To the maximum extent feasible, all facilities shall incorporate concealment measures and/or techniques appropriate for the proposed location and design. All ground-mounted equipment on private property shall be completely concealed to the maximum extent feasible according to the following preferences, ordered from most preferred to least preferred:

a. Within an existing structure including, but not limited to, an interior equipment room, mechanical penthouse or dumpster corral; then

b. Within a new structure designed to integrate with or mimic the adjacent existing structure; then

c. Within an underground equipment vault if no other feasible aboveground design that complies with subsections (A)(1)(a) or (b) of this section exists.

2. Underground Equipment. To the extent feasible, power and telecommunication lines servicing wireless communications facilities must be placed underground. Additional expense to install and maintain such lines underground does not exempt an applicant from this requirement, except where the applicant demonstrates by clear and convincing evidence that this requirement will effectively prohibit the provision of personal wireless services.

3. Height.

a. All facilities may not exceed the height limit in the applicable zoning district except as allowed in subsections (A)(3)(b) or (c) of this section.

b. The review authority may approve a height exception up to eight feet above the height limit when a proposed facility is:

i. Mounted on the rooftop of an existing building;

ii. Completely concealed; and

iii. Architecturally integrated into the underlying building; and

iv. If located (or proposed to be located) in the city’s coastal zone, does not impact public views to and along the ocean and scenic coastal areas.

c. The review authority may approve a height exception for towers or utility poles when:

i. The proposed facility is no taller than the minimum necessary to meet service objectives;

ii. The height exception is necessary to address a significant gap in the applicant’s existing service coverage;

iii. The applicant has demonstrated to the satisfaction of the planning commission through a detailed alternatives analysis that there are no viable, technically feasible, and environmentally (e.g., visually) equivalent or superior potential alternatives (i.e., sites, facility types, siting techniques, and/or designs) that comply with the height standard and meet service objectives; and

iv. The proposed facility complies with design standards and preferences in subsection B of this section (Tower-Mounted Facilities) to the maximum extent feasible.

4. Setbacks. All facilities shall comply with all setback requirements in the applicable zoning district.

5. Collocation. Facilities shall be designed, installed, and maintained to accommodate future collocated facilities to the extent feasible.

6. Landscaping. Landscaping shall be installed and maintained as necessary to conceal or screen the facility from public view. All landscaping shall be installed, irrigated, and maintained consistent with Chapter 17.72 (Landscaping) for the life of the permit.

7. Lights. Security lighting shall be down-shielded and controlled to minimize glare or light levels directed at adjacent properties.

8. Noise. All transmission equipment and other equipment (including but not limited to air conditioners, generators, and sump pumps) associated with the facility must not emit sound that exceeds the applicable limit established in Chapter 9.12 (Noises).

9. Public Right-of-Way.

a. Facilities located within or extending over the public right-of-way require city approval of an encroachment permit.

b. To conceal the nonantenna equipment, applicants shall install all nonantenna equipment underground to the extent feasible and appropriate for the proposed location. Additional expense to install and maintain equipment underground does not exempt an applicant from these requirements, except where the applicant demonstrates by clear and convincing evidence that the requirement will effectively prohibit the provision of personal wireless services.

c. Applicants must install ground-mounted equipment so that it does not obstruct pedestrian or vehicular traffic or incommode the public use of the right-of-way.

10. Signage.

a. A facility may not display any signage or advertisements unless expressly allowed by the city in a written approval, recommended under FCC regulations, or required by law or permit condition.

b. Every facility shall at all times display signage that accurately identifies the facility owner and provides the facility owner’s unique site number, and also provides a local or toll-free telephone number to contact the facility owner’s operations center.

11. Advertising. No advertising signage or identifying logos shall be displayed on wireless communications facilities, except for small identification plates used for emergency notification or hazardous or toxic materials warning, unless expressly allowed by the city in a written approval, recommended under FCC regulations, or required by law or permit condition.

12. Historic Features. A facility which modifies the exterior of a historic feature as defined in Section 17.84.020 (Types of historic resources) shall comply with the requirements of Chapter 17.84 (Historic Preservation).

13. Coastal Zone Considerations. Facilities in any portion of the city’s coastal zone shall be consistent with applicable policies of the city’s local coastal program (LCP) and the California Coastal Act. To the extent technically feasible and legally permissible, all facilities located in the city’s coastal zone must be designed, installed, mounted, and maintained so that no portion of a facility extends onto or impedes access to a publicly used beach.

B. Tower-Mounted Facilities.

1. General Design Preferences. To the extent feasible and appropriate for the proposed location, all new towers should be designed according to the following preferences, ordered from most preferred to least preferred:

a. Faux architectural features (examples include, but are not limited to, bell towers, clock towers, lighthouses, obelisks and water tanks); then

b. Faux trees; then

c. Monopoles that do not conceal the antennas within a concealment device.

2. Tower-Mounted Equipment. All tower-mounted equipment shall be mounted as close to the vertical support structure as possible to reduce its visual profile. Applicants should mount nonantenna, tower-mounted equipment (including, but not limited to, remote radio units/heads, surge suppressors, and utility demarcation boxes) directly behind the antennas to the maximum extent feasible.

3. Ground-Mounted Equipment. Ground-mounted equipment shall be concealed with opaque fences or other opaque enclosures. The city may require additional design and/or landscape features to blend the equipment or enclosure into the surrounding environment.

4. Concealment Standards for Faux Trees. All faux tree facilities shall comply with the following standards:

a. The canopy shall completely envelop all tower-mounted equipment and extend beyond the tower-mounted equipment at least eighteen inches.

b. The canopy shall be naturally tapered to mimic the particular tree species.

c. All tower-mounted equipment, including antennas, equipment cabinets, cables, mounts and brackets, shall be painted flat natural colors to mimic the particular tree species.

d. All antennas and other tower-mounted equipment cabinets shall be covered with broadleaf or pine needle “socks” to blend in with the faux foliage.

e. The entire vertical structure shall be covered with permanently affixed three-dimensional faux bark cladding to mimic the particular tree species.

C. Building- and Facade-Mounted Facilities.

1. General Design Preferences. To the extent feasible and appropriate for the proposed location, all new building- and facade-mounted facilities should be designed according to the following preferences, ordered from most preferred to least preferred:

a. Completely concealed and architecturally integrated facade- or rooftop-mounted base stations which are not visible from any publicly accessible areas at ground level (examples include, but are not limited to, antennas behind existing parapet walls or facades replaced with RF-transparent material and finished to mimic the replaced materials); then

b. Completely concealed new structures or appurtenances designed to mimic the support structure’s original architecture and proportions (examples include, but are not limited to, cupolas, steeples, and chimneys); then

c. Facade-mounted facilities incorporated into “pop-out” screen boxes designed to be architecturally consistent with the original support structure.

2. Ground-Mounted Equipment. Outdoor ground-mounted equipment associated with base stations must be avoided whenever feasible. In locations visible or accessible to the public, outdoor ground-mounted equipment shall be concealed with opaque fences or landscape features that mimic the adjacent structures (including, but not limited to, dumpster corrals and other accessory structures).

D. Pole-Mounted Facilities in the Public Right-of-Way.

1. All Facilities. All facilities mounted to steel light poles and wood utility poles in the public right-of-way shall comply with the following design standards:

a. Antennas, brackets, and cabling shall all be painted a single color that matches the pole color.

b. Unnecessary equipment manufacturer decals shall be removed or painted over.

c. The facility shall not alter vehicular circulation or parking within the public right-of-way or impede vehicular or pedestrian access or visibility along the public right-of-way.

d. All pole-mounted transmission equipment (including, but not limited to, antennas) shall be installed as close to the pole as technically and legally feasible to minimize impacts to the visual profile.

e. Colors and materials for facilities shall be chosen to minimize visibility. All visible exterior surfaces shall be constructed with nonreflective materials and painted and/or textured to match the support pole. All conduits, conduit attachments, cables, wires and other connectors must be concealed from public view to the maximum extent feasible.

f. An applicant may request an exemption from one or more standards in this subsection D (Pole-Mounted Facilities in the Public Right-of-Way) on the basis that such exemption is necessary to comply with Public Utilities Commission General Order 95. The applicant bears the burden to demonstrate why such exemption should be granted.

2. Steel Pole Facilities. Facilities mounted to a steel light pole in the public right-of-way shall comply with the following design standards:

a. All equipment and cabling shall be located in the pole and concealed from view.

b. Antennas shall be located on the top of the pole as a vertical extension of the pole. Antennas and equipment may not be mounted onto the side of the pole.

c. To the extent technically feasible, antennas shall be contained within a maximum fourteen-inch-wide enclosure on the top of the pole.

3. Wood Pole Facilities. Facilities mounted to a wood utility pole in the public right-of-way shall comply with the following design standards:

a. Equipment enclosures shall be as narrow as feasible with a vertical orientation to minimize its visibility when attached to the pole. The equipment mounting base plates may be no wider than the pole.

b. Side-mounted equipment may extend no more than five feet horizontally from the side of the pole.

c. Equipment shall be stacked close together on the same side of the pole.

d. A line drop (no electric meter enclosure) shall be used if allowed by the utility company.

e. Shrouds, risers, or conduit shall be used to reduce the appearance of cluttered or tangled cabling.

f. Side-mounted antennas shall be attached to the pole using an arm with flanges/channels that reduces the visibility of cabling and passive RF gear.

g. To the extent technically feasible, top-mounted antennas may be no wider than the width of the pole top.

4. Undergrounding of Cabling between Pole-Mounted Facilities in the Coastal Zone. For new pole-mounted facilities located in the city’s coastal zone, any proposed cable between such facilities shall be placed underground to the extent feasible. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.080 Operation and maintenance requirements. Revised 6/18

All wireless communications facilities approved through a city permit or deemed granted by operation of law shall comply with the following operation and maintenance requirements:

A. General Compliance. All facilities shall comply with all applicable goals, objectives and policies of the general plan/local coastal program, area plans, zoning regulations and development standards; the California Coastal Act; and the California Environmental Quality Act (CEQA).

B. Access Control. All facilities shall be designed to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions that would result in hazardous conditions, visual blight, or attractive nuisances. The community development director may require the provision of warning signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, antenna facilities have the potential to become an attractive nuisance.

C. Noise. All facilities shall be constructed and operated in such a manner as to minimize the amount of noise impacts to adjacent uses and activities. At any time, noise attenuation measures may be required by the community development director when deemed necessary. Facilities shall comply with all applicable noise standards in the general plan and municipal code. Testing and maintenance activities of wireless communications facilities which generate audible noise shall occur between the hours of eight a.m. and five p.m. weekdays (Monday through Friday, nonholiday) excluding emergency repairs, unless allowed at other times by the community development director.

D. General Maintenance. The site and the facility, including but not limited to all landscaping, fencing, transmission equipment, antennas, towers, equipment, cabinets, structures, accessory structures, signs, and concealment and/or stealth features and standards shall be maintained in a state of good repair, in a neat and clean manner, and in accordance with all approved permits and conditions of approval. Damage to the site and the facility shall be repaired promptly. This shall include keeping all wireless communications facilities graffiti free and maintaining security fences in good condition.

E. Change in Federal or State Regulations. All facilities shall meet the current standards and regulations of the FCC, the California Public Utilities Commission, and any other agency of the federal or state government with the authority to regulate wireless communications providers. If such standards and/or regulations are changed, the wireless communications provider shall bring its facilities into compliance with such revised standards and regulations within ninety days of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal or state agency. Failure to bring a wireless communications facility into compliance with revised standards and regulations shall constitute grounds for the immediate removal of the facility at the wireless communications provider’s expense.

F. Service after Natural Disaster. All wireless communications facilities providing service to the government or general public shall be designed to survive a natural disaster without interruption in operation. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.090 Temporary wireless communications facilities. Revised 6/18

A. A temporary wireless communications facility, such as a “cell-on-wheels” (COW), may be used to replace wireless communications facility services during the relocation or rebuilding process of an existing facility, during festivals or other temporary events and activities that otherwise require a permit under this chapter, and during public emergencies.

B. A temporary wireless communications facility shall be processed as an administrative use permit under a proposed or existing permit when used during the relocation or rebuilding process of an existing wireless communications facility, or when used for a festival or other temporary event or activity.

C. A temporary wireless communications facility to protect public health, safety or welfare during an emergency shall be processed as a Tier 2 administrative permit. The applicant shall submit an application for a temporary emergency use permit before installation of such temporary wireless communications facility.

D. The community development director may approve a temporary wireless communications facility for no more than ninety days.

E. A temporary wireless facility may be approved for a period of up to one year if the following requirements are met:

1. The planning commission determines that the temporary wireless communications facility shall be sited and constructed so as to:

a. Avoid proximity to residential dwellings to the maximum extent feasible;

b. Be no taller than needed;

c. Be screened to the maximum extent feasible; and

d. Be erected for no longer than reasonably required, based on the specific circumstances.

2. Permits and/or authorizations in excess of ninety days for temporary wireless communications facilities shall be subject to the notice and review procedures required by Section 17.104.040(H) (Public Notice and Hearing).

F. The property owner and service provider of the temporary wireless communications facility installed pursuant to this section (Temporary wireless communications facilities) shall immediately remove such facility from the site at the end of the specified term or the conclusion of the relocation or rebuilding process, temporary event, or emergency, whichever occurs first. The property owner and service provider of the temporary wireless communications facility shall be jointly and severally liable for timely removal of such temporary facility. The city may (but is not obligated to) remove any temporary wireless communications facility installed pursuant to this section (Temporary wireless communications facilities) at the owner and provider’s cost immediately at the end of the specified term or conclusion of the relocation or rebuilding process, temporary event, or emergency, whichever occurs first. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.100 Limited exemption from standards. Revised 6/18

A. Request for Exemption. An applicant may request an exemption from one or more requirements in this chapter on the basis that a permit denial would effectively prohibit personal wireless services in Capitola.

B. Basis for Approval. For the city to approve such an exemption, the applicant must demonstrate with clear and convincing evidence all of the following:

1. A significant gap in the applicant’s service coverage exists;

2. All alternative sites identified in the application review process are either technically infeasible or not potentially available; and

3. Permit denial would effectively prohibit personal wireless services in Capitola.

C. Applicant Must Demonstrate Basis for Approval. The applicant always bears the burden to demonstrate why an exemption should be granted. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.104.110 Severability. Revised 6/18

If any section or portion of this chapter is found to be invalid by a court of competent jurisdiction, such finding shall not affect the validity of the remainder of the chapter, which shall continue in full force and effect. (Ord. 1017 § 2 (Exh. A) (part), 2018)