Chapter 18.187
WIRELESS FACILITIES

Sections:

18.187.010    Purpose.

18.187.020    Definitions.

18.187.030    Applicability – Exempt facilities.

18.187.040    Permits required – Approval authority.

18.187.050    Application requirements.

18.187.060    Timeframes.

18.187.070    Permitted, conditionally permitted, and prohibited wireless facilities.

18.187.080    Preferred installation type.

18.187.090    Development standards.

18.187.100    Performance standards.

18.187.110    Other requirements.

18.187.120    Required findings for approval.

18.187.130    Time limits, abandonment, expiration, revocation, renewal, and modification of permits.

18.187.140    Transfer of interest.

18.187.150    Wireless facilities in the public right-of-way.

18.187.160    Independent consultant review.

18.187.170    Exceptions from standards.

18.187.180    Repealed.

18.187.010 Purpose.

(a)    The purpose of this chapter is to provide uniform standards for the placement, design, installation, monitoring, and permitting of wireless telecommunication facilities that are consistent with applicable state and federal requirements. In particular, this chapter shall be interpreted and applied so as to be consistent with the Telecommunications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, other applicable federal and state laws, and administrative and court decisions and determinations relating to same. These standards are also intended to address the adverse visual impacts of these facilities through appropriate design, siting, screening techniques and locational standards, while providing for the communication needs of residents and businesses.

(b)    The regulations in this chapter are specifically not intended to, and shall not be interpreted or applied to:

(1)    Prohibit or effectively prohibit the provision of personal wireless services;

(2)    Unreasonably discriminate among functionally equivalent service providers; or

(3)    Regulate wireless facilities and wireless transmission equipment on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the Federal Communications Commission. (Ord. 09-2017 § 1, 6-6-17.)

18.187.020 Definitions.

See Section 18.25.3225 for definitions of terms used in this chapter. (Ord. 09-2017 § 1, 6-6-17.)

18.187.030 Applicability – Exempt facilities.

The requirements of this chapter shall apply to all wireless facilities as defined in Section 18.25.3225, except for the following facilities which shall be exempt. Notwithstanding the foregoing, any eligible facilities request subject to Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, as those terms are defined under Section 18.25.3225, shall be processed in accordance with federal law.

(a)    Radio or television towers.

(b)    Satellite dish antennas.

(c)    Amateur radio antennas.

(d)    Public safety networks.

(e)    City wireless facilities.

(f)    Point to point access antennas. (Ord. 09-2017 § 1, 6-6-17.)

18.187.040 Permits required – Approval authority.

(a)    Design Review. All wireless facilities other than those in the public right-of-way require a design review permit and a building permit in addition to a conditional use permit or zoning administrator permit, if required in Table 18.187.070.

(1)    A ministerial design review permit, subject to Chapter 18.235, shall be required for collocations, modifications and upgrades to any wireless facilities as well as facade- and roof-mounted wireless facilities permitted by right.

(2)    A discretionary design review permit, subject to Chapter 18.235, shall be required for new wireless facilities in addition to a conditional use permit or zoning administrator permit, if required in Table 18.187.070.

Wireless facilities proposed to be located in the public right-of-way require a ministerial or discretionary design review permit and an encroachment permit, subject to all applicable standards under Chapter 12.05 (Encroachments to Streets and Sidewalks) and Section 18.187.150 (Wireless facilities in the public right-of-way).

(b)    Section 6409(a) Eligible Facilities Request. Projects that involve modifications to an “existing wireless tower” or “base station” in order to collocate, remove or replace transmission equipment, but would not substantially change the physical dimensions(s) of such tower or base station may be eligible for review under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, codified at 47 U.S.C. Section 1455 (“Section 6409(a)”). If deemed eligible, these projects shall be processed in accordance with the timeframes and approval process established by Section 6409(a) and implementing federal regulations. Proposed projects that involve a substantial change, as defined in Section 18.25.3225, are ineligible for review under Section 6409(a) and shall be reviewed in accordance with the permitting process outlined in Table 18.187.070. Projects that qualify as an eligible facility under Section 6409(a) require concurrent processing of a ministerial design review permit and building permit.

(c)    Zoning Administrator Permit. A zoning administrator permit shall be required for all wireless facility uses listed as zoning administrator permitted uses in Table 18.187.070.

(d)    Conditional Use Permit. A conditional use permit shall be required for all wireless facility uses listed as conditional uses in Table 18.187.070.

(e)    Historical Architectural Review Board (HARB).

(1)    Historical Overlay District (HOD). Where a wireless facility is proposed within an HOD and review is required in accordance with Chapter 18.135, the project shall also be reviewed by the historical architectural review board (HARB).

(2)    Register/Potential Register Resources. Where wireless facilities are proposed that could affect an historic or potentially historic resource, the project shall be reviewed by HARB in accordance with Chapter 18.175.

(f)    Other Required Permits and Approvals. In addition to any permit required under this section, an applicant must also apply for and obtain any separate permit or approval required for such wireless facilities under the municipal code, including, but not limited to, building, electrical, and encroachment. (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 25, 1-14-20.)

18.187.050 Application requirements.

(a)    General.

(1)    For all proposed wireless facilities other than those in the public right-of-way, the applicant shall provide the following information:

(A)    A map showing how the proposed wireless facility fits within the network of the applicant’s existing and proposed antenna sites.

(B)    Alternate site locations within a search ring.

(C)    A letter explaining the site selection process including information about the other sites that were considered and reasons for their rejection; power rating for all antennas and backup equipment proposed with first application.

(D)    The types and range of sizes of antennas and equipment cabinets available for use by the applicant.

(E)    The proposed design and, if applicable, why a more preferable design cannot be used, as set forth in Section 18.187.080.

(F)    A map identifying all existing wireless facilities within a 3,000-foot radius and reasons for not co-locating with existing wireless facilities.

(G)    Visual impact analysis that includes photo-simulations showing existing and proposed scenarios and section drawing that shows height of proposed wireless facilities as viewed from any public right-of-way.

(H)    A radio frequency (RF) report demonstrating that the proposed installation, including antennas and associated equipment cabinets, conforms to the radio-frequency radiation emission standards adopted by the FCC.

(I)    A noise study, prepared, signed and stamped by a California-licensed engineer, for the proposed wireless facility and all associated equipment, which shall include without limitation all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators. The noise study shall include without limitation the manufacturers’ specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines.

(2)    For all proposed wireless facilities in the public right-of-way, the applicant shall provide the following information:

(A)    For proposed wireless facilities on street light poles, written evidence of and agreement with or other evidence of authority of the owner of the facility if not owned by the applicant.

(B)    A map showing the precise location of the proposed wireless facility, including adjacent street names, adjacent street addresses, geographic coordinates, and utility pole number if available.

(C)    A photographic image showing the proposed location and immediate surroundings.

(D)    A photo simulation showing the proposed wireless facility installation.

(E)    A scaled elevation drawing of the proposed installation including the size and dimensions of the proposed equipment and, for pole installations, the equipment shroud.

(b)    Monopoles. For all proposed monopole facilities, the applicant shall provide a structural report identifying the number and type of antennas that the structure would be designed to support.

(c)    Section 6409(a) Eligible Facilities Request. In order to determine whether a proposed wireless facility is eligible for the process set forth in Section 18.187.040(b), the applicant shall provide a checklist with the following information:

(1)    Height. Description and dimensions of proposed change in height of the structure, including existing and proposed height.

(2)    Width. Description and dimensions of proposed change in width of the structure, including existing and proposed widths.

(3)    Other Modifications. Description of additional modifications, including, but not limited to, the number and size of additional cabinets, and any excavation or deployment beyond the existing site.

Applications determined eligible for a Section 6409(a) eligible facilities request shall be exempt from the general and monopole-specific submittal requirements listed above. (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 26, 1-14-20.)

18.187.060 Timeframes.

(a)    Section 6409(a) Eligible Facilities Request. Applications determined eligible for review under Section 6409(a) shall be processed within 60 days from the time the application is submitted, unless deemed incomplete within 30 days. Resubmittals shall be reviewed for completeness within 10 days and may be deemed incomplete again, but only if the applicant has failed to submit the information requested in the initial response.

(b)    Applications for wireless facilities not covered by subsection (a) of this section shall be acted upon within the time periods listed below:

(1)    Collocation. Applications to collocate wireless facilities shall be acted upon within 90 days of application submittal, unless deemed incomplete within 30 days. Resubmittals shall be reviewed for completeness within 10 days and may be deemed incomplete again, but only if the applicant has failed to submit the information requested in the initial response.

(2)    New Facilities. Applications for new wireless facilities shall be acted upon within 150 days of application submittal, unless deemed incomplete within 30 days. Resubmittals shall be reviewed for completeness within 10 days and may be deemed incomplete again, but only if the applicant has failed to submit the information requested in the initial response.

(c)    Application Submittal. All applications for wireless facilities shall be submitted by the applicant, in person, at a prior-scheduled appointment with city staff. The city shall endeavor to make appointment times available within five business days of request. The applicant should be prepared to discuss the application and answer questions from staff to help facilitate the expedited review. No application may be submitted in any other manner, and the acceptance of an application or any partial application shall not constitute a waiver of the requirements under this section. Applicants may submit supplemental information without an appointment. The planning manager or designee may waive the required appointment. (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 27, 1-14-20.)

18.187.070 Permitted, conditionally permitted, and prohibited wireless facilities.

Table 18.187.070 sets forth the types of wireless facilities and zoning districts where these facilities are permitted as of right, subject to a zoning administrator permit, subject to a conditional use permit, or are prohibited. Table 18.187.070 does not apply to wireless facilities located in the public right-of-way. Wireless facilities proposed to be located in the public right-of-way shall be subject to all applicable standards under Chapter 12.05 (Encroachments to Streets and Sidewalks) and Section 18.187.150 (Wireless facilities in the public right-of-way).

In Table 18.187.070 the letters, symbols, and footnotes are defined as follows:

“P” – Permitted Use

1 Term is defined in Section 18.25.3225

“Z” – Zoning Administrator Permit

2 Exception for Unique/Unusual Circumstance – Wireless facilities otherwise not permitted may be allowed, subject to a conditional use permit, when it can be found that there are unique circumstances, the site is suitable, and the overall intent/objectives of the ordinance requirements and guidelines still can be met.

“C” – Conditionally Permitted Use

“A” – Accessory Use

“- -” – Use Not Permitted

 

Table 18.187.070
Permitted, Conditionally Permitted, and Prohibited Wireless Facilities 

 

Facility Type

Specific Use Requirements/
Notes

Zoning District

Facade Mounted1, 2

Roof Mounted1, 2

Ground Mounted1, 2

Stealth and Freestanding Monopole1, 2

For facilities proposed in public right-of-way, see Section 18.187.150

Areas Above Toe of Hill

C

C

C

--

 

Open Space Districts

P

P

C

C

 

Residential Districts and Sites Used for Residential (Below Toe of Hill)

 

 

 

 

 

Less than one acre

C*

C

C

--

 

One acre or more

Z*

Z

C

--

 

Commercial Districts

 

 

 

 

 

Downtown (D-CA, D-MD, D-E and D-CC) and City Center (CC-TN, CC-UO and CC-UN)

Z

Z

C

C

 

C-O, C-N, C-G, C-R, MX, TC-P, and TC-T

Z

Z

C

C

 

Industrial Districts

 

 

 

 

 

Service Industrial (S-I),
Tech Industrial (T-I),
General Industrial (G-I)

P

P

C

C

 

Warm Springs Innovation (WSI)

 

 

 

 

 

Areas 1 and 2

P

P

C

C

 

Areas 3 and 4

Z*

Z*

--

--

(*) On commercial structures only

Area 4A

P*

P*

--

--

(*) On commercial structures only

Area 5

P

P

--

--

 

Areas 6 and 7

P

P

C

C

 

Area 8

Z

Z

C

C

 

Area 9

--

--

--

--

 

Area 10

P

P

--

C

 

Public Facility Districts

P

P

C

C

 

(Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 28, 1-14-20.)

18.187.080 Preferred installation type.

(a)    Based on potential aesthetic and visual impacts, the order of preference for wireless facility types is as follows, ordered from most preferred to least preferred:

(1) Facade mounts.

(2) Roof mounts.

(3) Ground mounts.

(4) Stealth monopoles.

(5) Freestanding monopoles.

In order to use any design, the applicant shall specify why a more preferable installation type(s) as set forth above cannot be used.

For facilities proposed above the toe of the hill1, the applicant must demonstrate that there is no feasible location(s) below the toe of the hill1 that can serve the same purpose. In order to achieve this goal, the preferred installation type priorities may be waived. (Ord. 09-2017 § 1, 6-6-17.)

18.187.090 Development standards.

These development standards pertain to wireless facilities that are not located in the public right-of-way. Wireless facilities proposed to be located in the public right-of-way are subject to all applicable standards under Chapter 12.05 (Encroachments to Streets and Sidewalks) and Section 18.187.150 (Wireless facilities in the public right-of-way).

(a)    Height.

(1)    Ground-Mounted Facilities. Ground-mounted antennas shall be limited to a maximum height of 10 feet. All associated equipment cabinets shall be limited to a maximum height of three feet above grade, unless other techniques are utilized to minimize visual impacts. Cabinets that are taller may be partially buried, or use existing contours and level differences to maintain the three-foot limit.

(2)    Monopoles. Monopoles shall be designed to the minimum functional height necessary. Lightning arrestor rods and beacon lights shall not be allowed on monopoles, unless required by applicable law.

(b)    Setback. For all sites adjacent to residential zoning districts or sites used for residential uses a 100-foot setback is required from the property line. Monopoles shall generally not be allowed within 1,000 feet of each other, unless adverse visual impacts are not significant.

(c)    Signage. The applicant shall provide signage as required by the FCC, including phone numbers of the utility providers for use in case of emergency. Additional requirements are as follows:

(1)    Signs shall be posted at the communications equipment/structure.

(2)    Antennas or mountings shall not be used for advertising.

(d)    Hill Area Development. Wireless facilities shall be subject to the Hillside Initiative of 1981 (Measure A) and the Hill Area Initiative of 2002 (Measure T) and the following requirements:

(1)    In general, a wireless facility located above the toe of the hill line1 is limited to meeting the needs created by uses above the toe of the hill line1, unless the city council reasonably finds more extensive public need cannot practicably be met below the toe of the hill1 line.

(2)    Wireless facilities located in these areas must demonstrate compliance with Sections 18.55.040 (Performance standards) and 18.130.050 (Development standards).

(3)    All ground-mounted wireless facilities shall utilize existing access roads. No new roads shall be allowed for the placement of wireless facilities.

(4)    The requirements of Section 18.187.080 may be waived when it can be demonstrated that a facility can be relocated below the toe of the hill line1.

(e)    Equipment. All equipment cabinets, antennas and other associated equipment shall be of a type preapproved by the FCC. The applicant may be required to provide a letter of certification from the FCC. Additional requirements are as follows:

(1)    Equipment cabinets shall be the minimum size and number necessary for the initial operation of the wireless facility network. Future additional cabinets may be eligible for a Section 6409(a) eligible facilities request, provided the modification does not constitute a substantial change.

(2)    The smallest available and least visible antennas that provide the coverage objective shall be used when mounted on monopoles. The number of antennas shall represent the minimum number required to complete the network.

(f)    Landscaping. All proposed landscaping shall require review for compliance with applicable regulations and design guidelines. Applicants shall provide written proof of the availability of any required irrigation facilities on site prior to permit issuance. This may be in the form of a letter from the owner of the land allowing the applicant the use of required water facilities for landscaping and all irrigation measures shall be shown on a landscape plan. (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 29, 1-14-20.)

18.187.100 Performance standards.

These performance standards pertain to wireless facilities that are not located in the public right-of-way. Wireless facilities proposed to be located in the public right-of-way are subject to all applicable standards under Chapter 12.05 (Encroachments to Streets and Sidewalks) and Section 18.187.150 (Wireless facilities in the public right-of-way).

(a)    Security. Fencing, walls, or anti-climbing or other electronic devices may be required to prevent unauthorized access and vandalism to the site and equipment. All security fencing/walls shall be designed to be graffiti-resistant. The applicant shall be responsible for graffiti-free maintenance of all wireless facilities, and shall provide a maintenance program for the facilities.

(b)    Lighting. Lighting shall not be allowed on wireless facilities unless required as a public safety measure.

(c)    Support Structure Material. Material used as support for antennas shall be fire-resistant and termite-proof and subject to all applicable requirements of the building code.

(d)    Hazardous Materials. The applicant shall comply with all requirements of the city of Fremont fire department hazardous materials unit regarding fire safety, which may include either installation of an automatic fire extinguishing system and/or installation of a remote monitoring system or such other compliance techniques, subject to review and approval of the fire chief prior to the issuance of building permits for the project. A letter of approval by the hazardous materials unit of the city’s fire department shall be obtained by the applicants prior to issuance of building permits.

(e)    Noise. At no time shall transmission equipment or any other associated equipment (including but not limited to heating and air conditioning units) at any wireless facilities emit noise levels in excess of the following at the property lines:

(1)    When adjacent to industrial, commercial, business, professional or office uses, the maximum noise level shall be an Ldn level of 70 dB(A).

(2)    When adjacent to hotels, motels and other lodging, or outdoor sports and recreation, neighborhood parks and playgrounds, the maximum noise level shall be an Ldn level of 65 dB(A).

(3)    When adjacent or contiguous to residential, institutional, or similar sensitive uses, the maximum noise level shall not exceed an hourly Leq level of 50 dB(A) during daytime hours (7:00 a.m. – 10:00 p.m.), an hourly Leq level of 45 dB(A) during nighttime hours (10:00 p.m. – 7:00 a.m.), an hourly Lmax level of 70 dB(A) during daytime hours, and an hourly Lmax level of 65 dB(A) during nighttime hours.

(4)    Code Compliance. All facilities shall at all times comply with all applicable federal, state, and local building codes, electrical codes, fire codes, and any other code related to public health and safety. (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 30, 1-14-20.)

18.187.110 Other requirements.

These requirements pertain to wireless facilities that are not located in the public right-of-way. Wireless facilities proposed to be located in the public right-of-way are subject to all applicable standards under Chapter 12.05 (Encroachments to Streets and Sidewalks) and Section 18.187.150 (Wireless facilities in the public right-of-way).

(a)    Maintenance. The applicant shall maintain the wireless facilities in good condition and shall agree to reasonable repairs and replacement of equipment, stealth and structural components, due to damage caused by outdoor exposure and/or inclement weather. If the exterior of the facility or equipment shelter fade in color due to outdoor exposure, the applicant shall replace such components within 90 days of written notice by the zoning administrator. If the work cannot be completed within 90 days, the applicant shall provide the city with a bond in the amount of the valuation of the requested repair and completion timeline to guarantee the work.

(b)    Bond for Removal. Prior to erecting a monopole, or prior to renewing a use permit for an existing monopole, the applicant shall provide a bond or other financial guarantee, satisfactory to the city attorney, for the removal of the facility, in the event that its use is abandoned or its use permit expires or is terminated. If the applicant has more than one monopole in the city, the amount of the bond or guarantee per monopole may be reduced if the applicant submits a lease agreement that requires removal of the unused monopole.

(c)    Indemnification. The wireless facilities applicant shall defend (with counsel reasonably acceptable to the city), indemnify, and hold harmless the city or any of its boards, commissions, agents, officers, and employees from any claim, action or proceeding against the city, its boards, commissions, agents, officers, or employees to attack, set aside, void, or annul the approval of the project. The city shall promptly notify the applicant of any such claim, action or proceeding. The city shall have the option of coordinating the defense. Nothing contained in this requirement shall prohibit the city from participating in a defense of any claim, action, or proceeding if the city bears its own attorney’s fees and costs, and the city defends the action in good faith.

(d)    Collocation. All wireless facilities applicants and/or providers proposing a monopole shall provide a written statement to the zoning administrator agreeing that they will allow other wireless carriers that use a compatible technology to collocate antennas on the monopole.

(e)    If any FCC, CPUC or other required license or approval to provide communication services is ever revoked, the applicant shall inform the city of the revocation within 10 days of receiving notice of such revocation.

(f)    Interference.

(1)    The wireless facilities provider shall cooperate with the city in determining whether the facility is causing interference with city communication systems and, if so, shall take all necessary steps in order to eliminate such interference. The provider shall be responsible for all labor and equipment costs for determining the source of the interference, and all costs associated with eliminating the interference, including but not limited to filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis.

(2)    The provider shall be further responsible for all costs arising from third party claims against the city attributable to the interference, but only to the extent the provider is determined by the FCC or a court of competent jurisdiction to have been legally responsible for such interference. Nothing in the preceding sentence shall be deemed to make the provider responsible for any costs associated with interference for which it would not be responsible under applicable FCC regulations. (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 31, 1-14-20.)

18.187.120 Required findings for approval.

(a)    Findings for approval of a design review permit, zoning administrator permit or conditional use permit shall be those set forth in Sections 18.235.060, 18.275.060 and 18.230.060, respectively.

(b)    Additionally, and if the wireless facility is located above the toe of the hill line1, the planning commission must find that the wireless facility has been limited to meeting the needs created by uses permitted above the toe of the hill line1. If the facility serves uses below the toe of hill line1 it must be referred to the city council, wherein, they must find that the more extensive public need cannot practicably be met below the toe of the hill line1. (Ord. 09-2017 § 1, 6-6-17.)

18.187.130 Time limits, abandonment, expiration, revocation, renewal, and modification of permits.

(a)    Time Limits on Approvals. Unless conditions of approval establish a different time limit, any discretionary zoning approval granted pursuant to this title shall expire within 24 months following the date on which the permit was approved except where an extension of time is approved in compliance with Section 18.330.030(b).

(b)    Conditional Use Permit. A conditional use permit to allow a wireless facility shall expire 10 years from the date of approval. The applicant may request a 10-year extension which shall be reviewed by the planning commission at a public hearing.

(c)    Cessation of Operations. The applicant shall provide written notification to the zoning administrator upon cessation of operations of a wireless facility on a site. The applicant shall remove all obsolete or unused facilities from the site within six months of the termination of the lease, cessation of operations, or expiration of the permit. No exposed mounting apparatus shall remain without associated antennas. The zoning administrator shall verify that the use of the site has ceased for a period of 12 consecutive months.

Should the provider fail to effect such removal, the property owner shall be responsible for the removal of the equipment. A new permit shall be required if the site is to be used again for the same purpose as permitted under the original permit, if a consecutive period of 12 months has lapsed since cessation of operations. (Ord. 09-2017 § 1, 6-6-17.)

18.187.140 Transfer of interest.

Upon transfer of an approved wireless facility or any rights under the applicable permit or approval, the permittee of the facility must within 30 days of such transfer provide written notification to the zoning administrator of the date of the transfer and the identity of the transferee. The zoning administrator may require submission of any supporting materials or documentation necessary to determine that the facility is in compliance with the existing permit or approval and all of its conditions including, but not limited to, statements, photographs, plans, drawings, and analysis by a qualified engineer demonstrating compliance with all applicable regulations and standards of the city, FCC, and CPUC. The permittee and any successor in interest to the approved wireless facility shall be required to adhere to all conditions of approval. (Ord. 09-2017 § 1, 6-6-17.)

18.187.150 Wireless facilities in the public right-of-way.

(a)    Design Guidelines. The city council shall, by resolution, establish design guidelines for the review of wireless facilities in the public right-of-way.

(b)    Ministerial Design Review Permit. An application for a wireless facility in the public right-of-way shall be subject to a ministerial design review permit and the procedures set forth in Chapter 18.235, if the facility:

(1)    Is consistent with the adopted design rules contained in the citywide design guidelines for wireless facilities on existing utility poles or light poles; and

(2)    Will be placed on a pole located more than 100 feet from any property line of a park or a property with a general plan land use designation of open space or potential or register historic resource.

(c)    Discretionary Design Review Permit. An application for a wireless facility in the public right-of-way that does not meet the adopted design rules contained in the citywide design guidelines shall be subject to a discretionary design review permit and the procedures set forth in Chapter 18.235, if the facility:

(1)    Provides alternatives that meet the intent of the design guidelines for wireless facilities on existing utility or light poles; and

(2)    Will be placed on a pole located within 100 feet of a park or a property with a general plan land use designation of open space or potential or historic register historic resource;

(d)    Findings for Approval. The approval authority may approve a discretionary design review permit upon such conditions, in addition to those expressly provided in other applicable provisions of this code, as it finds desirable in the public interest, upon finding that the approval will either:

(1)    Attain the objectives and purposes of the citywide design guidelines; or

(2)    Ensure that the general appearance of proposed facilities will not materially impair the visual aesthetics of adjacent properties.

(e)    Any provider that proposes to install a wireless facility on light poles or other utility poles shall provide evidence of a lease or at minimum a draft lease (including lease rate) when submitting an application for a design review permit.

(f)    Undergrounded Equipment. All nonantenna equipment shall be installed underground to the maximum extent feasible. All vents, exhausts and similar features for undergrounded equipment shall be flush to grade to the maximum extent feasible; all above-grade vents, exhausts or similar features shall be designed to blend with the environment to the maximum extent feasible. In no case shall equipment block any pedestrian path.

(g)    Pole-Mounted or Tower-Mounted Antennas or Transmission Equipment. All pole-mounted and tower-mounted antennas and transmission equipment shall be mounted as close as possible to the tower so as to reduce the overall visual profile to the maximum extent feasible. All pole-mounted and tower-mounted transmission equipment shall be painted with flat, nonreflective colors that blend with the visual environment. No portion of the antenna or transmission equipment mounted on a pole may be less than 16 feet above any road surface unless certain equipment must be placed lower in order to comply with California Public Utilities Commission General Order 95.

(h)    Wireless facilities proposed to be located in the public right-of-way shall be subject to all applicable standards under Chapter 12.05 (Encroachments to Streets and Sidewalks). (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 32, 1-14-20.)

18.187.160 Independent consultant review.

(a)    Selection by Zoning Administrator. The zoning administrator or designee may select and retain one or more independent consultants with expertise in wireless facilities in connection with any permit review and evaluation.

(b)    Scope. The independent consultant shall review the project aspects that involve technical or specialized knowledge and may address:

(1)    Whether the applicant submitted a complete and accurate application;

(2)    Whether the facts and materials presented in a particular application tend to support certain statements or analyses in the application;

(3)    Compliance with any applicable regulations;

(4)    Any other specific technical or specialized issues requested by the city; and/or

(5)    Presence or absence of a significant gap in service coverage, as appropriate.

(c)    Independent Consultant Fee Deposit. The applicant shall pay the cost for any independent consultant fees, along with applicable overhead recovery, through a deposit, estimated by the city, paid at the time the applicant submits an application. The applicant shall pay all consultant fees before the city may act on a permit application. In the event that such costs and/or fees do not exceed the deposit amount, the city shall refund any unused portion within 60 days after the design review permit is approved and the encroachment permit is released or, if no design review permit is approved and no encroachment permit is released, within 60 days after the city receives a written request from the applicant. (Ord. 09-2017 § 1, 6-6-17; Ord. 02-2020 § 33, 1-14-20.)

18.187.170 Exceptions from standards.

(a)    Notwithstanding the provisions of this chapter, one or more specific exception to the standards contained within this chapter may be granted if a denial would prohibit or have the effect of prohibiting the provision of wireless facility services by the applicant. As such, the city may grant special permission or exceptions, on such terms as the city may deem appropriate, in cases where the city determines that the grant of the special permission is necessary to comply with state and federal law or regulations and where the applicant shows by clear and convincing evidence that no other location or combination of locations in compliance with this chapter can provide comparable communications.

(b)    Prior to the issuance of an exception, the applicant shall be required to submit to the city a written explanation setting forth clear and convincing evidence that the location or locations, and the design of the facility is necessary to close a significant gap in service coverage, that there is no feasible alternate location or locations, or design, that would close a significant gap or to reduce it to less than significant, and that the facility is the least intrusive means to close a significant gap or to reduce it to less than significant in service. Exceptions shall be subject to the review and approval of the planning commission. The burden is on the applicant to prove significant gaps and least intrusive means as required herein. (Ord. 09-2017 § 1, 6-6-17.)

18.187.180 Conflicts with other ordinances or regulations.

Repealed by Ord. 02-2020. (Ord. 09-2017 § 1, 6-6-17.)

[Notes Applicable to Chapter 18.187]

1    This term is defined in Chapter 18.25.