Chapter 17.61
COMMERCIAL WIRELESS COMMUNICATIONS FACILITIES
Sections:
17.61.010 Purpose.
17.61.020 Definitions and acronyms.
17.61.030 Permitted use.
17.61.040 Use permit required – Permitting fees.
17.61.050 Application required – Contents of use permit application.
17.61.060 Review of use permit application.
17.61.070 Design standards.
17.61.080 Required findings for approval.
17.61.090 Section 6409(a) modification applications.
17.61.100 Microcell applications.
17.61.110 Time to act on application.
17.61.120 Standard conditions.
17.61.130 Operational regulations.
17.61.140 Modifications of a WCF permit.
17.61.150 Revocation of a WCF use permit.
17.61.160 Abandonment, removal, or relocation of facilities.
17.61.170 Transfer of an interest.
17.61.180 Exemption for municipal facilities.
17.61.190 Violations are infractions.
17.61.200 Controlling provisions.
17.61.010 Purpose.
A. This chapter addresses the installation and modification of commercial wireless communications facilities (“WCFs”) operated for the purpose of providing commercial wireless telecommunication and/or data service. This chapter discusses the applicable design criteria and permitting procedures for all WCFs.
The purpose of this chapter is to reasonably regulate, to the extent permitted under California and federal law, the installations, operations, collocations, modifications, replacements and removals of various WCFs in the city, recognizing the benefits of wireless communications while reasonably respecting other important city needs, including the protection of public health, safety, and welfare, aesthetics and local values.
B. The overarching intent of this chapter is to make wireless communications reasonably available while preserving the essential unique character and visual aesthetic of the city. This will be realized by:
1. Minimizing the visual and physical effects of WCFs through appropriate design, siting, screening techniques and location standards;
2. Encouraging the installation of WCFs at locations where other such facilities already exist;
3. Encouraging the integration of WCF design into existing buildings;
4. Encouraging the installation of such facilities where and in a manner such that potential adverse impacts to the city are minimized.
C. It is not the purpose or intent of this chapter to:
1. Prohibit or to have the effect of prohibiting wireless communications services; or
2. Unreasonably discriminate among providers of functionally equivalent wireless communications services; or
3. Regulate the placement, construction or modification of WCFs on the basis of the environmental effects of radio frequency (“RF”) emissions where it is demonstrated that the WCF does or will comply with the applicable FCC regulations; or
4. Prohibit or effectively prohibit collocations or modifications that the city must approve under state and/or federal law.
D. The provisions in this chapter shall apply to all permit applications to install, operate or change, including, without limitation, to collocate, modify, replace or remove, any new or existing wireless tower or base station within the city. This chapter does not apply to WCFs owned by or exclusively operated for government agencies, amateur radio stations, satellite dish or other television antennas or other OTARD antennas, or towers as defined and governed by Chapter 17.60, except to the extent that such towers may be used to support WCFs.
E. Nothing in this chapter is intended to allow the city to preempt any state or federal law or regulation applicable to a WCF.
F. The provisions of this chapter are in addition to, and do not replace, any obligations a WCF permit holder may have under any franchises, licenses, or other permits issued by the city. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.020 Definitions and acronyms.
For the purposes of this chapter, certain terms shall have meanings as follows:
A. “Antenna” shall mean a device used to transmit and/or receive radio or electromagnetic waves such as but not limited to panel antennas, reflecting discs, microwave dishes, whip antennas, directional and nondirectional antennas consisting of one or more elements, multiple antenna configurations, or other similar devices and configurations.
B. “Antenna array” shall mean two or more antennas having elements extending in one or more directions, and directional antennas mounted upon and rotated through a vertical mast or tower interconnecting the beam and antenna support, all of which are elements deemed to be part of the antenna.
C. “Applicant” shall mean the owner(s) or the owner’s agent of property upon which wireless communications facilities are proposed to be located. In instances where wireless communication facilities are proposed to be located on any public right-of-way, the applicant is the carrier or entity which will operate the facility or the newly added components of the facility upon its completion.
D. “Base station” shall mean the transmission equipment and non-tower support structure at a fixed location that enable FCC-licensed or authorized wireless communications between user equipment and a communications network. A “non-tower support structure” means any structure (whether built for wireless purposes or not) that supports wireless transmission equipment under a valid permit at the time the applicant submits its application to install, collocate, and/or modify wireless telecommunications equipment.
E. “Camouflaged or concealed WCF” shall mean a wireless communications facility that (1) is integrated as an architectural feature of an existing structure such as (but not limited to) a cupola; or (2) is integrated in an outdoor fixture such as (but not limited to) a flagpole; or (3) uses a design and paint or finish which mimics and is consistent with nearby natural or architectural features, or is incorporated into or replaces existing permitted facilities (including but not limited to stop signs or other traffic signs or freestanding light standards) so that the presence of the WCF is not readily apparent due to its design, color, and/or appearance.
F. “Carrier” shall mean a wireless communications service provider licensed by the FCC and/or by the California Public Utilities Commission.
G. “City” shall mean the city of Foster City, California.
H. “City council” shall mean the city council of the city of Foster City, California.
I. “City manager” shall mean the city manager of the city of Foster City, California, or his or her designee.
J. “Code” shall mean the Foster City Municipal Code.
K. “Collocation” shall mean the placement or installation of transmission equipment on an existing wireless tower or base station for the purpose of transmitting or receiving radio frequency signals for communications purposes.
L. “Community development director” or “CDD” shall mean the city of Foster City’s director of the community development department or his or her designee.
M. “CPUC” shall mean the California Public Utilities Commission.
N. “Distributed antenna system” or “DAS” shall mean a network of microcells and related fiber optic nodes, typically mounted to streetlight poles or utility poles, which provide access and signal transfer for wireless service providers. A DAS also includes the equipment location, sometimes called a “hub” or “hotel,” where the DAS network is interconnected with one or more wireless service provider’s facilities to provide the signal transfer services.
O. “FCC” shall mean the Federal Communications Commission.
P. “FRP screening” shall mean screening using fiber-reinforced plastic or fiber-reinforced polymer.
Q. “Lattice tower” shall mean an open framework structure used to support one or more antennas, typically with three or four support legs.
R. “Microcell” or “small cell” shall mean a WCF which meets each of the following conditions:
1. The support structure or wireless tower on which the facility’s antennas are mounted is:
a. Fifty feet or less in height;
b. No more than ten percent taller than adjacent structures; or
c. In the case of collocation, not extended to a height of more than ten percent above its height prior to the collocation; and
2. Each antenna is no more than three cubic feet in volume; and
3. All antenna equipment associated with the facility is cumulatively no more than twenty-eight cubic feet in volume.
S. “Monopole” shall mean a single freestanding pole used to act as or support an externally mounted antenna or antenna array.
T. “OTARD antenna” shall mean any antenna covered by the “over-the-air reception devices” rule in 47 CFR Section 1.4000 et seq., as may be amended or replaced from time to time.
U. “Outdoor fixture” shall mean any wall (excluding any retaining wall eighteen inches or less in height), utility box, fence, gate, column, pillar, post, flag pole, light post or similar lighting fixture (excluding any standard mail box), either freestanding or incorporated into a fence or wall.
V. “Public property” shall mean property owned or under the control of the city and specifically excludes the city’s rights-of-way. By way of example and not limitation, public property includes structures and outdoor fixtures owned by the city.
W. “Public works director” shall mean the director of the city of Foster City public works department or his or her designee.
X. “Radome” shall mean a visually opaque radio frequency transparent enclosure which may contain transmission equipment.
Y. “RF” or “RF emissions” shall mean radio frequency emissions.
Z. “Screening” shall mean design features or architectural techniques that shield a WCF from sight. This may include, but is not limited to, FRP screening.
AA. “Section 6409(a)” shall mean Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, codified as 47 U.S.C. Section 1455(a), as may be amended or interpreted in judicial or administrative decisions.
BB. “Section 6409(a) modification” shall mean a collocation or modification of transmission equipment at an existing wireless tower or base station that does not result in a substantial change in the physical dimensions of the existing wireless tower or base station. For the purposes of a Section 6409(a) modification, the term “substantial change” means:
1. For wireless towers outside the public right-of-way:
a. The proposed collocation or modification increases the overall height of the tower by more than ten percent, or by the height of one additional antenna array and its separation from the nearest existing antenna totaling more than twenty feet (whichever is greater);
b. The proposed collocation or modification involves adding an appurtenance to the body of the tower that would increase the width of the tower by more than twenty feet, or the existing width of the wireless tower at the level of the appurtenance (whichever is greater); or
c. The proposed collocation or modification involves deployment or 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.
2. For wireless towers within the public right-of-way and for all base stations:
a. The proposed collocation or modification increases the overall height of the tower or base station more than ten percent or ten feet (whichever is greater);
b. The proposed collocation or modification increases the width more than six feet from the edge of the wireless tower or base station; or
c. The proposed collocation or modification involves deployment or excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.
3. For all proposed collocations and modifications:
a. The proposed collocation or modification involves more than the standard number of new equipment cabinets for the technology involved, but not to exceed four equipment cabinets;
b. The proposed collocation or modification would defeat the concealment elements of the support structure;
c. 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 that is inconsistent with the thresholds for a substantial change described in this section; or
d. The proposed collocation or modification involves deployment or excavation outside of the existing leased or licensed area upon which the existing WCF sits, and/or excavation outside of the existing pad upon which ground-mounted equipment is affixed.
The thresholds and conditions for a “substantial change” described in this section are disjunctive. Exceedance or violation of any individual threshold or condition listed above results in a substantial change. The height and width thresholds for a substantial change described in this section are cumulative for each individual wireless tower or base station. The cumulative limit is measured from the physical dimensions of the original structure for base stations and all sites in the public rights-of-way, and from the smallest physical dimensions that existed on or after February 22, 2012, for wireless towers on private property.
CC. “Structure” shall mean anything constructed or erected that requires location on the ground or is attached to something having location on the ground, but not including outdoor fixtures or hardscape. Examples of a structure include, but are not necessarily limited to, any dwelling, building, second unit, garage, carport, tool house, guest house, greenhouse, pool house, satellite dish antenna, solar collector panel, tree house or other play structure, swimming pool, tennis court, play court, and deck. For purposes of this chapter, the definition of “structure” does not include utility poles or any other pole or structure otherwise defined within this section.
DD. “Support equipment” shall mean the physical, electrical and/or electronic equipment included within a wireless communications facility used to house, power, and/or process signals from or to the antenna or antennas but specifically excluding the base station.
EE. “Support structure(s)” shall mean a structure, outdoor fixture, tower, or utility pole capable of safely supporting a WCF, but does not necessarily include a wireless tower or base station.
FF. “Tolling agreement” shall mean an agreement between the city and an applicant proposing a new or modified WCF to postpone the deadline to make a final determination on the permit application and waive any claims or rights against each other during that period.
GG. “Transmission equipment” shall mean any equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas and other relevant equipment associated with and necessary to their operation, including coaxial or fiber-optic cable and associated conduit housing, and regular and backup power supply.
HH. “Unipole” shall mean a uniform width pole with one or more antennas and associated equipment and cables contained within the interior of the pole, and with a radome at the top of the pole being the same width as the pole.
II. “Utility box” shall mean any transformer, switch box, telephone, cable television box, service panel, meter or similar device, either ground-mounted or mounted to a support structure.
JJ. “Utility pole” shall mean a steel or wood pole or structure located in the rights-of-way and dedicated to use by multiple utilities and providers of communications franchised by the state or city.
KK. “Whip antenna” shall mean an omnidirectional antenna.
LL. “Wireless” shall mean any FCC-licensed or authorized communication service transmitted over frequencies in the electromagnetic spectrum.
MM. “Wireless communications facility” or “WCF” shall mean a facility used to “provide personal wireless services” as defined at 47 U.S.C. Section 332(c)(7)(C); or wireless information services provided to the public or to such classes of users as to be effectively available directly to the public via licensed or unlicensed frequencies; or wireless utility monitoring and control services; or any other FCC-licensed or authorized service. A WCF does not include a facility entirely enclosed within a permitted building outside of the rights-of-way where the installation does not require a modification of the exterior of the building; nor does it include a device attached to a building used for serving that building only and that is otherwise permitted under other provisions of the code. A WCF consists of an antenna or antennas, including, but not limited to, directional, omnidirectional and parabolic antennas, base station, support equipment, and (if applicable) a wireless tower. It does not include the support structure to which the WCF or its components are attached. The term does not include mobile transmitting devices used by wireless service subscribers, such as vehicle or handheld radios/telephones and their associated transmitting antennas, nor does it include other facilities specifically excluded from the coverage of this chapter.
NN. “Wireless tower” or “tower” shall mean any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities. This does not include structures that were installed to replace or collocate upon existing power poles, light poles, energy transmission towers, or buildings. A support structure, which is modified or replaced to allow for the installation of transmission equipment, retains its prior use as its primary use, and the wireless use is only a secondary use thereof, even if the transmission equipment is the only attachment to the support structure. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.030 Permitted use.
Subject to compliance with this chapter and other applicable provisions of this code and other law, WCFs are a permitted use in all zoning districts, as defined in Section 17.10.010. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.040 Use permit required – Permitting fees.
A. A WCF may not be installed, collocated, or modified without a use permit, except as provided herein. A building permit must be obtained prior to performing any work to remove a WCF.
B. A use permit shall not be issued:
1. Unless the applicant shows that it has the necessary permission from the owner of private property, including a homeowners’ association, to place the WCF as proposed on private property or from the public entity owning public property that it proposes to occupy (including the authority to make modifications to any support structure or wireless tower associated with the installation or modification); and
2. In the case of a WCF proposed to be located, in whole or in part, in the public right-of-way, unless the applicant holds a franchise, license or similar authorization from the city or the state that entitles it to occupy the rights-of-way to install or modify a WCF.
C. A permit shall not be effective and shall not authorize installation, collocation, or modification of any WCF or installation or modification of a support structure or wireless tower unless the following conditions are satisfied:
1. The applicant must obtain all other required permits, authorizations, approvals, and declarations that may be required for installation or modification of the WCF or for installation or modification of the support structure under federal, state, or local law, including but not limited to building permits, CEQA declarations, or FCC approvals. A WCF permit is not in lieu of any other permit required under the code, except as specifically provided herein, nor is it a franchise, license, or other authorization to occupy the rights-of-way, or a license, lease, or agreement authorizing occupancy of any other private or public property. It does not create a vested right in occupying any particular location, and a permittee may be required to move and remove facilities at its expense consistent with other provisions of applicable law.
2. The applicant must provide proof to the city that it has obtained all insurance and/or security required by the code and must pay any fees owed to the city.
D. A permit issued in error, based on incomplete or false information submitted by an applicant or that conflicts with the provisions of this chapter, is not valid.
E. The applicant shall pay all applicable fees as enacted by the city council prior to the issuance of a permit. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.050 Application required – Contents of use permit application.
A. In all cases an applicant for a use permit for a proposed WCF shall utilize the form of application required by the city. The CDD is authorized to prepare application forms and submittal checklists, and may develop application forms that distinguish between different types of installations and modifications in order to streamline processing of applications, and to comply with legal requirements. These generally applicable requirements shall be available for review in the city’s planning department during normal business hours and shall be provided to an applicant upon request. The CDD may also from time to time require additional application materials and/or information in any publicly stated format. An application will not be considered complete until the applicant has submitted all forms and supporting documents or items as required by the CDD.
B. Where a WCF is part of a network of WCFs that will be installed contemporaneously or sequentially, such as a DAS network, the applications for each of the facilities in the proposed network shall be submitted simultaneously.
C. Applicants shall conduct neighborhood outreach and provide proof of such outreach to all property owners no less than three hundred feet from the proposed WCF site as part of the required WCF application use permit submittal package.
D. In addition to the requirements of this chapter, applications to construct, modify, upgrade, or otherwise alter a WCF in a public right-of-way require an encroachment permit subject to the provisions of Chapter 12.40. The applicant may apply for the required encroachment permit at the time that the use permit and building permits applications are submitted, or after obtaining a building permit. If the applicant does not apply for the required encroachment permit at the time of submitting its application for a use permit and building permit, the time to act on the application specified in Section 17.61.110 shall not apply to the encroachment permit application. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.060 Review of use permit application.
A. All persons submitting an application for a WCF use permit shall also submit an application for a building permit at the time that the use permit application is submitted. The use permit application shall be deemed incomplete if not accompanied by a building permit application. All persons wishing to apply for a WCF use permit shall schedule an appointment with the community development department to submit the application and perform an initial check to determine whether the application appears to meet all required application submittal requirements as set forth by this chapter and the CDD. Applications shall only be accepted at a scheduled meeting.
B. Unless the application is deemed incomplete at the initial check pursuant to subsection A of this section, the CDD shall review all WCF use permit applications for completeness with applicable submittal requirements and compliance with the provisions of this chapter and other applicable laws and regulations.
C. If the application submitted by the applicant is incomplete, the CDD shall notify the applicant in writing within ten days for microcell applications and within thirty days for all other applications. Said notification shall include a list of items missing from the application and the municipal code section(s) and/or submittal checklist item(s) which require additional submittals to deem an application complete.
D. When an application is deemed incomplete, the applicant may submit additional materials to complete the application. An applicant may only submit a revised application or supplemental materials to a previously deemed incomplete application by appointment. The CDD shall schedule an applicant’s appointment for resubmission within five business days of the applicant’s request.
E. When an applicant resubmits an application with the additional required materials, the CDD will determine whether the resubmitted application is complete within ten calendar days of submission appointment. If the resubmitted application is not complete, the CDD will provide notice to the applicant within ten calendar days and include a list of items missing from the application and the municipal code section(s) which require the items in order to deem an application complete. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.070 Design standards.
A. The purpose of this section is to identify requirements and preferences for the location and design of WCFs, to provide guidance to prospective applicants as they seek appropriate WCF locations within the city, and to provide guidance to the planning commission and CDD in determining whether to grant, grant with conditions, or to deny a WCF use permit application.
B. This section applies to all new WCFs and to all collocations and modifications to existing WCFs, except collocations and modifications to existing WCFs that qualify as Section 6409(a) modifications.
C. Siting on Residential Parcels. Wireless communications facilities shall not be permitted on properties zoned and used for residential purposes or undeveloped parcels intended for residential use, unless the residential property owner provides written consent and:
1. The applicant demonstrates that all alternative nonresidential sites and placement options (including collocation) have been explored, and the proposed site is the least intrusive of the feasible alternative sites; and
2. Design measures have been taken to ensure that no significant visual impact would result from the proposed facility.
D. Maintenance of City Character. A WCF shall be designed and located to minimize the impact on the surrounding neighborhood, and to maintain the character and appearance of the city, consistent with other provisions of the code. To that end, WCFs should:
1. Employ the least intrusive design for the proposed location in terms of size, mass, visual and physical impact, and effects on properties from which the WCF is visible; and
2. Accommodate collocation consistent with the other design requirements of this chapter; and
3. Be consistent with the general plan.
E. Camouflage of a WCF. All portions of a WCF affixed to a support structure shall be designed to blend in or be screened from view in a manner consistent with the support structure’s architectural style, color, and materials, when viewed from any part of the city. WCFs shall be painted and textured or otherwise camouflaged to match the color and texture of the support structure on which they are mounted. Where the support structure is a building, the WCF, including without limitation base station cabinets, remote transmitters and receivers, and antenna amplifiers, shall be placed within the building or mounted behind a parapet screened from public view unless that is not feasible. If the CDD determines that such in-building placement is not feasible, the equipment shall be roof-mounted in an FRP screen or similar enclosure or otherwise screened from public view as approved by the planning commission or CDD. All exposed and/or visible wires, pipes, conduits, and similar components shall be painted or treated to reduce their visibility to the degree possible.
F. Camouflage of Wireless Towers and Base Stations. All wireless towers and base stations shall be camouflaged or concealed. The installation of an uncamouflaged wireless tower or base station is prohibited.
G. Visual Impact and Collocation. WCFs should be collocated with existing WCFs if within one thousand five hundred feet of an existing visible WCF, unless the city determines that the particular design proposed would not create excessive visual clutter or would otherwise create harm the city may ameliorate. However, microcells and other WCFs located on streetlight poles or utility poles shall be limited to two collocated facilities per pole.
H. A WCF located in the public right-of-way:
1. Shall, with respect to its pole-mounted components, be located on an existing streetlight pole or utility pole serving another utility;
2. Shall be located in a concealed WCF and/or shall be designed, painted, and/or finished to be consistent with other existing natural or manmade features in the rights-of-way near the location where the WCF is to be located;
3. Shall, with respect to its pole-mounted components, be located on a new utility pole where other utility distribution lines are aerial only, if there are no reasonable alternatives, and the applicant is authorized to construct new utility poles; or
4. Shall place underground all equipment to the extent that site conditions permit to minimize aesthetic impact and to maximize use of poles for other carriers. Equipment that cannot be installed underground due to site conditions shall be mounted to the pole or structure on which its antenna is located. If equipment cannot be installed underground due to site conditions, nor mounted to the pole or structure, it shall be ground-mounted.
I. The pole-mounted components of a WCF on a streetlight pole or utility pole shall, whether in or outside of any public right-of-way:
1. Comply with CPUC General Order 95 and General Order 128, as they may be amended or replaced;
2. Be consistent with or smaller than the size and shape of pole-mounted equipment installed by communications companies on streetlight poles and utility poles near the WCF.
J. The ground-mounted components of a WCF, including but not limited to utility boxes, whether in or outside of any right-of-way:
1. Shall be located flush to grade, where possible, to avoid incommoding the public or creating a hazard; and
2. To the extent permitted aboveground, shall otherwise be appropriately screened, landscaped, and camouflaged to blend in with the surroundings, and nonreflective paints shall be used. All equipment associated with the WCF must be screened.
K. Height Restrictions. All applicable height restrictions contained within this chapter regarding building height for structures, including but not limited to poles, towers, and buildings, shall apply to all base stations, wireless towers, and support structures, except in the following circumstances:
1. The applicant demonstrates the necessity to build above the applicable height restriction, that there are no suitable alternative sites, and that no alternative equipment exists that would allow installation of the WCF without building above the applicable height restriction;
2. The applicant proposes a Section 6409(a) modification to an existing structure; or
3. The applicant proposes to collocate WCF equipment at an existing site whose structure is nonconforming with the applicable height restriction and the application does not propose to increase the height of the existing structure.
L. Lighting. WCFs shall not be lighted except in one of the following instances and when the lowest feasible intensity lighting is used:
1. For proximity-triggered and/or timer-controlled security lighting;
2. To comply with regulations for the illumination of any flag attached to a WCF; or
3. Where such lighting is required by the CDD to protect public health or welfare, or as part of the camouflage for a particular design.
M. Signage. No advertising signage shall be displayed on any WCF except for government required signs shown in the WCF permit application. Additionally, site identification, address, warning, and similar information plates may be permitted where approved by the planning commission or CDD.
N. Americans with Disabilities Act. The WCF shall comply with all requirements of the Americans with Disabilities Act of 1990 (“ADA”), as may be amended or replaced.
O. Obstructions. The WCF shall not incommode the public (including, without limitation, persons with disabilities) in its use of any structure or any portion of the rights-of-way. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.080 Required findings for approval.
A. It is the applicant’s burden to show that a use permit should be approved. In reviewing an application, the planning commission or CDD may consider the WCF as proposed, and as it may be modified as a matter of right, through a subsequent Section 6409(a) modification application or otherwise. When considering an application, the planning commission or CDD may consider any matter it is entitled to or required to consider as a matter of law. To approve an application, the planning commission or CDD must make the following findings:
1. The application was deemed complete by the CDD;
2. The application is consistent with the design standards set forth in Section 17.61.070;
3. The WCF and support structure additions and modifications proposed are consistent with the general plan and will not adversely affect the policies and goals set forth therein or alter the aesthetic character of the community;
4. The WCF and support structure modifications and additions proposed comply with the design standards herein, and other applicable provisions of the code;
5. The WCF and support structure modifications and additions proposed comply with applicable safety codes and laws (including without limitation the ADA);
6. The WCF and support structure modifications and additions do not interfere with the public’s use of any right-of-way, or create undue risks to persons or property;
7. The applicant has made the required affirmation regarding compliance with the FCC’s RF regulations, as the same may be amended;
8. The applicant was authorized to file the application;
9. The applicant has or will have necessary local, state, or federal regulatory approvals required in connection with the WCF (including but not limited to necessary California Environmental Quality Act (CEQA) approvals, if any; and approvals for structures on private property); and
10. Alternative designs or locations were duly considered, and the proposed design is more consistent with the general plan and otherwise minimizes the impact of the WCF and support structure modifications and additions to the greatest extent possible.
B. Notwithstanding any other provision of this section to the contrary, if, in the opinion of the CDD in consultation with the city attorney, any of the provisions of this section are preempted or superseded by federal or state law, the planning commission or CDD may approve an application which does not comply with the design standards and/or required findings for approval which are determined to be preempted or superseded.
C. A WCF located on private property shall also be subject to any design review provisions of this chapter to the extent that it involves a modification to a support structure which is subject to separate review under this chapter and shall complement the surrounding structures and/or improvements. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.090 Section 6409(a) modification applications.
A. An applicant proposing a Section 6409(a) modification shall affirmatively indicate on the application that the proposed improvement is subject to Section 6409(a). Any application which does not affirmatively indicate that it is subject to Section 6409(a) shall be reviewed as a standard collocation or modification application.
Any application designated by the applicant as a Section 6409(a) modification, or any application determined by the CDD as proposing a Section 6409(a) modification, shall be reviewed, processed, and approved, approved with conditions, or denied by the CDD.
B. Pursuant to 47 U.S.C. Section 1455(a), the CDD shall approve a Section 6409(a) modification except when:
1. The collocation or modification would result in a substantial change (as defined in Section 17.61.020(BB)) to the existing wireless tower or base station;
2. The collocation or modification would violate any applicable building code, electrical code, structural code, fire code or any other law, regulation, rule or prior condition of approval based on objective factors and reasonably related to public health and safety;
3. The collocation or modification involves the replacement of the wireless tower or other support structure; or
4. 47 U.S.C. Section 1455(a) does not apply to the collocation or modification for any lawful reason.
C. Any denial of a Section 6409(a) modification shall be without prejudice. Subject to this section, the applicant may submit the same or substantially the same permit application, together with all required fees and deposits, for either a WCF permit or a Section 6409(a) modification permit.
D. The city shall be entitled to recover the reasonable costs for its review of any Section 6409(a) modification permit application, whether approved, approved with conditions, deemed granted, or denied without prejudice. In the event that the CDD denies a Section 6409(a) modification permit, the city shall return any unused deposit fees within sixty days after a written request from the applicant. If the fees in the deposit account do not cover the reasonable cost for the city’s review, an applicant shall not be allowed to submit an application for the same or substantially the same modification project unless all fees for the prior denied permit application are paid in full. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018)
17.61.100 Microcell applications.
A. For an application designated by the applicant as a microcell facility application or modification, or if determined by the CDD that the applicant is proposing a microcell facility application or modification, the review process and approval, approval with conditions, or denial of the application shall be made by the CDD. Applicants may include multiple proposed microcells in one application. An application that proposes both microcell and nonmicrocell installations shall be handled as separate applications, and all proposed nonmicrocell facilities shall be subject to individual requirements, review criteria, and fees, as their own applications.
B. If a small cell is installed on or affixed to a city-owned support structure, the owner of the small cell/permit holder shall obtain a license for use of the structure from the city prior to or in conjunction with the permitting process, shall pay an additional processing fee for the license, and shall pay an annual fee for such use. (Ord. 625 § 1 (part), 2019)
17.61.110 Time to act on application.
A. Except in instances where the city has entered into a tolling agreement with the applicant, the planning commission or CDD shall act to approve, approve with conditions, or deny all applications within the following periods:
1. Within sixty days for:
a. Section 6409(a) modification applications; and
b. Microcell facilities proposed to be collocated or attached to existing support structures.
2. Within ninety days for:
a. Collocations of nonmicrocell WCFs;
b. Installations of nonmicrocell WCFs onto existing support structures; and
c. New microcell facilities (including new support structure).
3. Within one hundred fifty days for new nonmicrocell WCFs (including new support structure).
B. Tolling Periods. If the applicant is timely notified that its application is incomplete pursuant to Section 17.61.060, the time to act on the application as defined by this section shall toll from the day after such notice is given to the applicant in writing to the day that the applicant submits additional documents to render the application complete. Should that supplemental submission fail to render the application complete, the time to act on the application shall again toll on the day after written notice to the applicant that the supplemental submission was insufficient until the day that the applicant submits additional documents to render the application complete.
C. Microcell Time Reset. Notwithstanding the above, if the applicant submits an incomplete application that proposes to install a small wireless facility and is timely notified that the application is incomplete, the period in which the application must be acted upon shall not run until the applicant makes a supplemental submission to complete the application. Should the subsequent submittal still fail to complete the application and the applicant is notified timely, the tolling periods provisions above shall apply. (Ord. 625 § 1 (part), 2019)
17.61.120 Standard conditions.
A. As a condition of every permit issued pursuant to this chapter, the city may establish a reasonable construction build-out period for a WCF.
B. The WCF permit holder shall comply with all other applicable requirements of this code, including but not limited to building codes and provisions related to work in any right-of-way.
C. The WCF permit holder shall obtain and maintain all other applicable permits, approvals, and agreements necessary to install and operate the WCF in conformance with federal, state, and local laws, rules and regulations.
D. The city may inspect permitted facilities and property and may enter onto a site to inspect facilities upon reasonable notice to the WCF permit holder. In case of an emergency or risk of imminent harm to persons or property within the vicinity of permitted facilities, the city reserves the right to enter upon the site of the WCF and to support, disable, or remove those elements of the WCF posing an immediate threat to public health and safety.
E. The WCF permit holder shall maintain on file with the city and on site at the WCF contact information of all parties responsible for maintenance of the WCF, including without limitation contact information for a representative of the facility operator, representatives of all wireless carriers utilizing the WCF, and representatives of all contractors and subcontractors responsible for maintaining the WCF.
F. The WCF permit holder and, if applicable, the private property owner shall defend, indemnify and hold harmless the city of Foster City, its agents, officers, officials, and employees (1) from any and all damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, lawsuits, writs of mandamus, and other actions or proceedings brought against the city or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void or annul the city’s approval of the WCF permit, and (2) from any and all damages, liabilities, injuries, losses, costs and expenses and any and all claims, demands, lawsuits, 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 or in connection with the activities or performance of the WCF permit holder or, if applicable, the private property owner or any of each one’s agents, employees, licensees, contractors, subcontractors, or independent contractors (subsections (1) and (2) of this section collectively are “actions”). Further, WCF permit holders shall be strictly liable for interference caused by their WCFs with the city’s communications systems. The WCF permit holder shall be responsible for costs of determining the source of the interference, all costs associated with eliminating the interference, and all costs arising from third party claims against the city attributable to the interference (“claims”). In the event the city becomes aware of any such actions or claims, the city shall promptly notify the WCF permit holder and the private property owner and shall reasonably cooperate in the defense. 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 and/or WCF permit holder (as applicable) shall reimburse city for any costs and expenses directly and necessarily incurred by the city in the course of the defense.
G. A permit may be terminated if the city determines that the permit was granted based on false, misleading, or incomplete information; if a material provision of the permit is no longer enforceable; if the permit holder violates a condition of the permit; or if the permittee modifies the WCF or support structure without permission.
H. The WCF permit holder shall make a good faith effort to minimize project-related disruptions to adjacent properties. Site improvement and construction work, including setup, loading or unloading of materials or equipment, performed as part of this project is subject to all provisions of the code related to permitted work, including but not limited to Section 12.40.500. Emergency maintenance and repairs are exempt from the restricted hours. Violation of this condition may result in issuance of a stop work order or administrative citations.
I. In addition to all other standard conditions of approval required under this section, and to all conditions of approval permitted under state and federal law that the planning commission or CDD may deem appropriate for a specific WCF, all Section 6409(a) modifications, whether granted by the CDD under the federal directive in 47 U.S.C. Section 1455(a) or deemed granted by the operation of law, shall automatically include all the conditions of approval as follows:
1. A Section 6409(a) modification permit issued, deemed granted, or accepted shall not renew or extend the permit term for the underlying WCF;
2. In the event that a court of competent jurisdiction invalidates or limits, in part or in whole, 47 U.S.C. Section 1455(a) such that such statute would not mandate approval for the collocation or modification granted or deemed granted under a Section 6409(a) modification permit, such permit shall automatically expire twelve months from the date of that opinion;
3. A Section 6409(a) modification permit issued, deemed granted or accepted shall not waive and shall not be construed or deemed to waive the city’s standing in a court of competent jurisdiction to challenge 47 U.S.C. Section 1455(a) or any Section 6409(a) modification permit issued pursuant to 47 U.S.C. Section 1455(a) or this code. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.110)
17.61.130 Operational regulations.
A. All WCFs within the city shall be designed, maintained, and operated at all times to comply with the provisions of this chapter and the following other requirements:
1. Conditions in any permit or license issued by a local, state, or federal agency, which has jurisdiction over the WCF;
2. Rules, regulations, and standards of the state and federal governments and the city, including without limitation the FCC, the CPUC, and this code;
3. Easements, covenants, conditions, and/or restrictions on or applicable to the underlying real property;
4. Rules, regulations, and standards of the city governing underground utilities;
5. All other laws, codes, and regulations applicable to a WCF, including the California Environmental Quality Act (CEQA).
B. Without limiting the foregoing, all WCFs shall be maintained in good working condition and to the visual standards established at the time of approval over the life of the WCF permit. The WCF and surrounding area shall remain free from trash, debris, litter, graffiti, and other forms of vandalism. Any damage shall be repaired as soon as is practicable, and in no instance more than ten days from the time of notification by the city or after discovery by the WCF permit holder. If landscaping was required by the permit issued, the permittee shall maintain the landscaping in a healthy and vigorous condition. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.120)
17.61.140 Modifications of a WCF permit.
A. The city may modify a permit as necessary to protect public health and safety, or where the permit as issued is no longer enforceable in accordance with its terms.
B. A permit holder may modify a permit by seeking either a Section 6409(a) modification or other modification. Any modification other than a Section 6409(a) modification shall be treated as a request for a new WCF, and shall require planning commission or CDD approval.
C. Requests for modifications shall be reviewed in accordance with the provisions of this chapter at the time modification is sought, and not at the time the permit was initially issued. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.130)
17.61.150 Revocation of a WCF use permit.
A. A WCF use permit may be revoked if the permittee is not in compliance with permit conditions; if one or more permit conditions are not enforceable; or for a failure to comply with any provision of the code relating to the permit or relating to the WCF associated with the permit (“default event”). By way of example and not limitation, a refusal to timely remove facilities located in the right-of-way where required in connection with a public works project would be a default event.
B. The city may revoke a WCF use permit only after:
1. Written notice of the default event has been provided to the WCF permit holder; and
2. The WCF permit holder has been afforded at least thirty days to cure and comply with its permit, or demonstrate that no default event occurred.
C. If the WCF permit holder fails to cure, the city council may revoke the permit consistent with Section 17.06.190.
D. Upon revocation, the city may require the removal of the WCF or take any other legally permissible action or combination of actions necessary to protect the health and welfare of the city. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.140)
17.61.160 Abandonment, removal, or relocation of facilities.
A. Any WCF permit holder who abandons or discontinues use of a WCF for a continuous period of ninety days shall so notify the city by certified mail within thirty days after the ninety-day period.
B. If the CDD believes a WCF has been abandoned or discontinued for a continuous period of ninety days, the CDD shall send by certified mail a notice of abandonment or discontinuation to the WCF permit holder stating why he or she believes the WCF to be abandoned or discontinued. Failure of the WCF permit holder to reply to this notice in writing within thirty days after receiving, rejecting, or returning the city’s certified letter shall entitle the CDD to make the determination that the WCF is, in fact, abandoned or discontinued.
C. Upon declaration of the CDD that a WCF located on public property or in the public right-of-way is abandoned or discontinued, the city may remove the WCF and any supporting structures installed solely in connection with the WCF and restore the site to be consistent with the then-existing surrounding area. The city shall not be required to but may at its discretion store any removed equipment. The cost of this removal and restoration work and storage, if applicable, shall be paid by the permit holder, who shall be provided with an invoice by the city. Until the cost of removal, repair, restoration, and storage is paid in full, a lien shall be placed on any related real or personal property owned by the permit holder, including but not limited to the removed equipment. The city clerk shall cause the lien to be recorded with the San Mateo County recorder. No person or entity may apply for a new or renewed permit under this chapter if he/she/it owes any amounts invoiced by the city under this section.
D. Upon declaration of the CDD that the WCF located on private property is abandoned or discontinued, the WCF permit holder or owner of the affected real property shall have ninety days from the date of the declaration or a further reasonable time as may be approved by the CDD, within which to complete one of the following actions:
1. Reactivate use of the WCF, subject to the terms and conditions of the applicable WCF permit;
2. Transfer the rights to use the WCF to another entity (who shall be subject to all the provisions of this chapter) and the entity immediately commences use of the WCF; or
3. Remove the WCF and any supporting structures installed solely in connection with the WCF, and restore the site to be consistent with the then-existing surrounding area.
E. If ninety days after the declaration by the CDD that a WCF located on private property is abandoned or discontinued none of the required actions in subsections (D)(1) through (D)(3) of this section has occurred, the city council at a noticed public hearing may declare that the WCF is abandoned. The city shall provide notice of such finding to the WCF permit holder and to the telecommunications carrier last known to use the WCF and, if applicable, to the owner of the affected private real property, providing thirty days from the date of the notice within which to complete one of the following actions:
1. Reactivate use of the WCF, subject to the terms and conditions of the applicable WCF permit;
2. Transfer the rights to use the WCF to another operator (who shall be subject to all the provisions of this chapter); or
3. Remove the WCF and any supporting structures installed solely in connection with the WCF, and restore the site to be consistent with the then-existing surrounding area.
F. If there is no reactivation, transfer or removal as set forth in subsection D of this section, the abandoned or discontinued WCF shall be a public nuisance subject to abatement under this title. Alternatively, the city may remove the abandoned WCF, repair any and all damages to the premises caused by such removal, and otherwise restore the premises as is appropriate to be in compliance with applicable codes. If the city removes the WCF, the city may, but shall not be required to, store the removed WCF or any part thereof, and may use it, sell it or dispose of it in any manner deemed by the city to be appropriate. The entity that abandoned the WCF, or its successor in interest, and, if on private property, the private property owner, shall be jointly liable for the entire cost of such removal, repair, restoration and storage and shall remit payment to the city promptly after demand therefor is made. In addition, the city council, at its option, may utilize any financial security required in conjunction with granting the WCF permit to recover such costs.
G. Any cost incurred by the city to remove, repair, restore, or store a WCF site or WCF equipment shall be charged to and paid by the permit holder and/or the private real property owner. Until these costs are paid in full, a lien shall be placed on the WCF and any related personal property and any private real property on which the WCF was located for the full amount of the cost of removal, repair, restoration and storage. The city clerk shall cause the lien to be recorded with the San Mateo County recorder.
H. After adequate written notice to the WCF permit holder, the city council or CDD may require the relocation, at the WCF permit holder’s expense and according to the then-existing standards for WCFs, of any WCF located in the rights-of-way, as necessary for maintenance or reconfiguration of the city’s rights-of-way or for other public projects, or take any other action or combination of actions necessary to protect the health and welfare of the city.
I. If an existing utility pole that hosts a WCF must be replaced, the WCF permit holder shall within thirty days after the installation of the replacement pole either relocate its WCF in the same configuration on the replacement pole, or remove the prior-existing WCF rather than relocate it, and notify the city of the removal, and surrender its WCF permit for cancellation by the city.
J. If the WCF permit holder fails to relocate or remove the WCF as required by this section, the city may elect to treat the WCF as a public nuisance subject to abatement. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.150)
17.61.170 Transfer of an interest.
A WCF permit holder shall not assign or transfer any interest in its permits for WCFs without advance written notice to the city. The notice shall specify the identity of the assignee or transferee of the permit, as well as the assignee’s or transferee’s address, telephone number, name of primary contact person(s), and other applicable contact information, such as an email address or facsimile number. The new assignee or transferee shall comply with all of the WCF’s terms and conditions of approval, and shall submit to the city at the earliest date possible a written acceptance of the WCF permit’s terms and conditions and a written assumption of the obligations thereafter accruing under such permit prior to the date that such assignment or transfer is intended to take effect. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.160)
17.61.180 Exemption for municipal facilities.
WCFs installed or operated at the direction of the city for the sole use of the city, regardless of where located in the city, shall be exempt from this chapter but, as a matter of policy, shall be designed and located consistent with the design requirements of this chapter. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.170)
17.61.190 Violations are infractions.
It is unlawful for any person to violate any provision or to fail to comply with any of the requirements of this chapter. Any person, firm, partnership, or corporation violating any provision herein or failing to comply with any of these requirements will be deemed guilty of an infraction and upon conviction thereof will be punished by a fine not exceeding one thousand dollars. Each such person, firm, partnership, or corporation will be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of any of the provisions of this chapter is committed, continued or permitted by such person, firm, partnership, or corporation, and will be deemed punishable therefor as provided in this chapter. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.180)
17.61.200 Controlling provisions.
In the event of any inconsistency between the provisions of this chapter and any other provision of this code, the more specific provision shall control. Without limiting the generality of the foregoing, WCFs shall be governed by the permitting procedures and design standards set forth herein. (Ord. 625 § 1 (part), 2019: Ord. 614 § 1 (part), 2018. Formerly 17.61.190)