ARTICLE XXXV. WIRELESS TELECOMMUNICATION FACILITIES, ANTENNAS AND WINDMILLS

30.35.10 Purpose and intent.

The purpose and intent of this article is to provide a uniform and comprehensive set of standards for the development, siting, installation and operation of wireless telecommunications antennas and related facilities (“wireless telecommunication facilities”) for personal wireless services. These regulations are designed to protect and promote public safety and community welfare, to preserve the visual character of the city, to establish development standards that are consistent with federal law related to the development of wireless telecommunication transmission facilities, to acknowledge the community benefit associated with the provision of wireless telecommunication services within the city, and to provide incentives for well designed and well placed facilities.

(a) The objectives of this article include but are not limited to the following:

(1) General Order 159A of the Public Utilities Commission (PUC) of the State of California acknowledges that local citizens and local government are often in a better position than the PUC to measure local impact and to identify alternative sites. Accordingly, the PUC will generally defer to local governments to regulate the location and design of cell sites, wireless telecommunication facilities and mobile telephone switching offices (MTSOs) including (a) the issuance of land use approvals, (b) acting as lead agency for purposes of satisfying the California Environmental Quality Act (CEQA), and (c) the satisfaction of noticing procedures for both land use and CEQA procedures;

(2) Foster an aesthetically pleasing urban environment, prevent visual blight, protect and preserve public safety and general welfare, and maintain the character of residential and adjacent neighborhood commercial areas consistent with the adopted general plan and specific plans and in compliance with applicable state and federal legislation;

(3) Establish and maintain telecommunications facilities that are components of a wireless telecommunications infrastructure designed to enhance the city’s emergency response network and do not interfere with such emergency systems in violation of applicable federal or state regulations;

(4) Establish a process for obtaining necessary permits for wireless telecommunication facilities that provides greater certainty to both applicants and interested members of the public while ensuring compliance with all applicable zoning requirements;

(5) Because wireless telecommunications antennas and related facilities for cellular and mobile phones and personal communications systems are commercial uses that are usually separate from and are rarely accessory to the primary use of a parcel, to dissuade locating such facilities in residentially zoned districts unless (a) such location is necessary to provide personal wireless services to residents and businesses in the City of Gilroy, or their owners, customers, guests, or invitees, or other persons traveling in or about the City of Gilroy, (b) the wireless telecommunications facilities are designed to interfere as little as possible with the character of the neighborhood, and (c) no other feasible alternative site or sites exist that can provide comparable services individually or in combination, as evidenced by a report provided by the applicant;

(6) Provide opportunities for further reduction in potential aesthetic or land use impacts of wireless telecommunications facilities as changes in technology occur;

(7) Promote the use of wireless telecommunications technology, where appropriate and within the scope of available resources, to enhance the economic vitality of the City of Gilroy; and

(8) Comply with applicable state and federal laws, including the 1996 Telecommunications Act and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.11 Definitions.

“Amortize” means the period of time necessary to secure full value of the legal owner’s investment in the wireless telecommunication equipment pursuant to the regulations of generally accepted accounting principles (“GAAP”) as established by the American Institute of Certified Public Accountants (AICPA).

“Antennas” means any system of wires, poles, rods, reflecting discs, dishes, flat panels, or similar devices, including “whip antennas,” attached to a telecommunications tower, mast or other structure, which in combination with the radio-frequency radiation generating equipment associated with a base station, are used for the transmission or reception of electromagnetic waves.

“Base station” means the structure and equipment at a fixed location that enables Federal Communications Commission (FCC)-licensed or authorized wireless communications between user equipment and a communication network. It includes, but is not limited to, utility poles, light standards, buildings, and other structures that house communication equipment as long as it received the applicable regulatory approvals, even if the structure was not built for the sole or primary purpose of providing such support.

“Cellular service” means a wireless telecommunications service that permits customers to use mobile telephones and other communication devices to connect, via low-power radio transmitter sites, either to the public switched telephone network or to other fixed or mobile communication devices.

“Channel” means the segment of the radiation spectrum from an antenna, that carries one (1) signal. An antenna may radiate on many channels simultaneously.

“Co-location” or “co-located facility” means the mounting or installation of transmission equipment on an existing wireless tower or base station for the purpose of transmitting and/or receiving radio frequency signals for communication purposes.

“Communication equipment shelter” means a structure located at a base station designed principally to enclose equipment used in connection with telecommunication transmissions.

“dBm” means a unit of measure of the power level of an electromagnetic signal expressed in decibels referenced to one (1) milliwatt.

“Dish antenna” means any device incorporating a reflective surface that is solid, open mesh, or bar configured that is shallow dish, cone, horn, or cornucopia-shaped and is used to transmit and/or receive electromagnetic signals.

“Equipment building, shelter or cabinet” means a cabinet or building used to house equipment used by wireless telecommunication providers at a facility.

“FAA” means Federal Aviation Administration.

“FCC” means Federal Communications Commission, the government agency responsible for regulating telecommunications in the United States.

“GHz” means gigahertz—one billion (1,000,000,000) hertz.

“Ground-mounted wireless telecommunication facility” means any antenna with its base placed directly on the ground, or that is attached to a mast or pipe.

Hertz. One (1) hertz is a unit of measurement of an electric or magnetic field, which reverses its polarity at a frequency of once per second (i.e., one (1) cycle or wavelength per second).

“MHz” means megahertz—one million (1,000,000) hertz.

“Microcell site” means a small radio transceiver facility comprised of an unmanned equipment cabinet with a total volume of one hundred (100) cubic feet or less that is either under or above ground, and one (1) omnidirectional whip antenna with a maximum length of five (5) feet, or up to three (3) small (approximately one (1) foot by two (2) feet or one (1) foot by four (4) feet) directional panel antennas, mounted on a single pole, an existing conventional utility pole, or some other similar support structure.

“MMDS” means multichannel, multipoint distribution services (also known as “wireless cable”).

“Monitoring” means the measurement, by the use of instruments in the field, of radio-frequency/nonionizing radiation exposure at a site as a whole, or from individual wireless telecommunication facilities/towers/antennas/repeaters.

“Monitoring protocol” means an industry accepted radio-frequency (RF) radiation measurement protocol used to determine compliance with FCC RF radiation exposure standards, in accordance with the National Council on Radiation Protection and Measurements Reports 86 and 119 and consistent with the RF radiation modeling specifications of OET Bulletin 65 (or any superseding reports/standards), which is to be used to measure the emissions and determine radio-frequency radiation exposure levels from existing and new telecommunications facilities. RF radiation exposure measurements are to be taken at various locations, including those from which public RF exposure levels are expected to be the highest.

“Monopole” means a single pole structure erected on the ground to support one (1) or more wireless telecommunication antennas and connecting appurtenances.

“MTSOs” means mobile telephone switching offices.

“Nonionizing electromagnetic radiation (NIER)” means radiation from the portion of the electromagnetic spectrum with frequencies of approximately one million (1,000,000) GHz and below, including all frequencies below the ultraviolet range, such as visible light, infrared radiation, microwave radiation, and radio frequency radiation.

“Personal communications services (PCS)” means digital wireless telecommunications technology such as portable phones, pagers, faxes and computers. Also known as “personal communications network (PCN).”

“Personal wireless services—commercial” means mobile services, unlicensed wireless services, and common carrier wireless exchange access services. These services include: cellular services, personal communication services, specialized mobile radio services, and paging services.

“Public works director” means the department head for the city’s public works department, or the person designated to act for purposes of this Article XXXV.

“PUC” or “CPUC” means California Public Utilities Commission.

“PUD” means planned unit development.

“Radio-frequency (RF) radiation” means radiation from the portion of the electromagnetic spectrum with frequencies below the infrared range (approximately one hundred (100) GHz and below), including microwaves, television VHF and UHF signals, radio signals, and low to ultra-low frequencies.

“Repeater” means a small receiver/relay transmitter of relatively low power output designed to provide service to areas that are not able to receive adequate coverage directly from a base or primary station.

“Significant gap” means a gap in the service provider’s (applicant carrier’s) own personal wireless services network within the City of Gilroy, as defined in federal case law interpretations of the Federal Telecommunications Act of 1996.

“Stealth technology/techniques” means camouflaging methods applied to wireless telecommunication towers, antennas and/or other facilities, which render them visually inconspicuous.

“Structurally able” means the determination that a tower or structure is capable of carrying the load imposed by the new antennas under all reasonably predictable conditions as determined by professional structural engineering analysis.

“Structure-mounted wireless telecommunication facility” means any immobile antenna (including panels and directional antennas) attached to a structure, such as a building facade or a water tower, or mounted upon a roof.

“Telecommunication tower (tower)” means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities. It includes, but is not limited to, masts, poles, monopoles, guyed towers, lattice towers, and freestanding towers.

“Transmission equipment” means equipment that facilitates transmission of any FCC-licensed or authorized wireless service. It includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply.

“Viable,” primarily in reference to the alternatives analysis, means an alternative site for which there is a property owner/manager interested in renting, leasing, selling, or otherwise making available, space for one (1) or more wireless telecommunication facilities upon said site on reasonable terms commensurate with the market in the City of Gilroy.

“Visual impact” means an adverse effect on the visual and/or aesthetic environment. This may derive from blocking of a view, or introduction of elements that are incompatible with the scale, texture, form or color of the existing natural or human-made landscape, including the existing community character of the neighborhood.

“Wireless telecommunication (or telecommunications) facility” means a facility, including all associated equipment, which supports the transmission and/or receipt of electromagnetic/radio signals. Wireless telecommunication facilities include cellular radiotelephone service facilities, personal communications service facilities (including wireless Internet), specialized mobile radio service facilities, and commercial paging service facilities. Components of these types of facilities can consist of the following: antennas, repeaters, microwave dishes, horns, and other types of equipment for the transmission or receipt of such signals, telecommunication towers or similar structures supporting said equipment, equipment buildings, parking areas, and other accessory development. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.12 Applicability.

(a) Facilities regulated by this article include the siting, design, construction, major modification, and operation of all wireless telecommunication facilities, including FCC-regulated dish antennas, antennas used for multichannel, multipoint distribution services (MMDS) or “wireless cable,” personal wireless service facilities (e.g., cellular phone services, personal communication services (PCS), wireless paging services, etc.), television antennas and windmills. The regulations in this article and qualifying applications processed pursuant to this article are intended to be consistent with the requirements of applicable state and federal law, including the Federal Telecommunications Act of 1996 and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, in that they are not intended to: (1) be used to unreasonably discriminate among providers of functionally equivalent services, (2) have the effect of prohibiting personal wireless services within the City of Gilroy, or (3) have the effect of prohibiting the siting of wireless telecommunication facilities on the basis of the environmental/health effects of radio frequency emissions, to the extent that the regulated services and facilities comply with the regulations of the FCC concerning such emissions.

(b) Nothing contained in this article affects the city’s right to retain and/or utilize its proprietary rights over its property. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.13 Exemptions.

(a) The following wireless telecommunications facilities shall be exempt from this article:

(1) A wireless telecommunication facility shall be exempt from the permit provisions of this article if and to the extent that a permit issued by the California Public Utilities Commission (CPUC) or the rules and regulations of the FCC specifically provide the antenna is exempt from local regulation.

(2) Direct broadcast satellite (DBS) antennas and multipoint distribution services (MDS) antennas which are one (1) meter or less in diameter or diagonal measurement and television broadcast service (TVBS) antennas so long as they are located entirely on site and are not located within the required front yard setback area. This locational requirement is necessary to ensure that such antenna installations do not become attractive nuisances and/or result in accidental tripping hazards if located adjacent to a street or other public right-of-way.

(3) Satellite earth station (SES) antennas which are two (2) meters or less in diameter or in diagonal measurement located in a commercial or industrial zoning district. However, such antennas shall require building permit approval and architectural and site review by the planning division to ensure maximum safety is maintained. In order to avoid the creation of an attractive nuisance, reduce accidental tripping hazards and maximize stability of the structure, such antennas shall be placed whenever possible on the top of buildings and as far away as possible from the edges of rooftops.

(4) A ground- or building-mounted citizens band or two (2) way radio antenna, including any mast.

(5) A ground-, building-, or tower-mounted antenna operated by a federally licensed amateur radio operator as part of the amateur radio service, provided the antenna does not exceed thirty-five (35) feet in the R1 and R2 zone districts, thirty (30) feet in the RH zone district, forty-five (45) feet in the R3 zone district, seventy-five (75) feet in the R4 zone district and fifty (50) feet in the public facilities zone district. Amateur radio antennas that exceed the height limit in residential zone districts are required to secure approval of a conditional use permit.

(6) A ground- or building-mounted receive-only radio or television antenna which does not exceed the height requirements of the zoning district, or television dish antenna which does not exceed three (3) feet in diameter if located on residential property within the exclusive use or control of the antenna user.

(7) A television dish antenna that is no more than six (6) feet in diameter and is located in any area where commercial or industrial uses are allowed by the land use designation. Television dish antennas greater than one (1) meter in diameter in the Rl and R2 zones shall be permitted only between the main dwelling unit and the rear property line, or attached to the rear roof eave or building wall and not within twenty (20) feet of any property line adjacent to a public right-of-way. Dish antennas greater than one (1) meter shall not be placed higher than eighteen (18) feet. In other zone districts, dish antennas shall be screened to comply with section 30.50.44(d) related to mechanical appurtenances, whether such antenna is located on the roof or on the ground.

(8) Temporary mobile wireless services, including mobile wireless telecommunication facilities and services providing public information coverage of news events, of less than two (2) weeks’ duration.

(9) Handheld devices such as cell phones, business-band mobile radios, walkie-talkies, cordless telephones, garage door openers and similar devices.

(10) Wireless telecommunication facilities and/or components of such facilities to be used solely for public safety purposes, installed and operated by authorized public safety agencies (e.g., county 911 emergency services, police, sheriff, and/or fire departments, first responder medical services, hospitals, etc.), are exempt from the provisions of this article.

(11) Any nonmajor modification or maintenance activities carried out as part of the routine operation of wireless telecommunication facilities.

(12) Small scale, low powered, short-range wireless Internet transmitter/receivers (e.g., “wi-fi hotspots”).

(13) A television antenna that is not located in any front or side yard setback, at least six (6) feet from any property boundary, set back ten (10) feet from any overhead electrical power line, located such that any collapse of the antenna will not result in contact with any power line carrying over four thousand (4,000) volts, and does not exceed the zone district height limit by more than fifteen (15) feet.

(14) Windmills that conform to all height and setback requirements established for the main building in the zone district. The setback shall be measured from the greatest possible extension of any fixed or movable part of the windmill or related structure. Windmills shall be located at least ten (10) feet from any overhead electrical power line.

(15) Telemetry facilities used solely for the monitoring and control of water, sewer, irrigation, and flood and storm control systems.

(16) Notwithstanding subsection (a)(1) of this section, all DAS/small cell structures and equipment affixed to city-owned street lights or other city-owned facilities, structures or equipment in the public ROW are subject to the execution of a master lease agreement between the city and the carrier that includes all of the siting and design requirements that would typically occur in the planning review process and project implementation through the encroachment permit process. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.14 Permits required.

(a) Permit Required. No wireless telecommunications facility except those designated in section 30.35.13 (Exemptions) shall be installed or erected in the city limits of Gilroy except upon approval of a permit as set forth in Table 35.1. Table 35.1 identifies the type of permit required in each general zoning classification.

(b) Co-location. Each service provider located on a co-location site must obtain a zoning clearance per section 30.45.15, independent of the other service providers in the same locations, if the proposed facility complies with all of the following requirements:

(1) The facility is consistent with the current zoning regulations;

(2) The facility was previously subject to discretionary review; and

(3) The facility was found to be in compliance with CEQA and NEPA. Multiple service providers may submit one (1) application for all intended co-located facilities.

(c) Architectural and Site Review Permit. Applications, which require approval of a conditional use permit, shall also require approval of an architectural and site review permit.

(d) Conflicting Provisions. Use permits and architectural and site review permits shall be processed in accordance with sections 30.50.30 and 30.50.40, respectively, and in accordance with the provisions of this article. In the event of any conflict between the provisions of this article and the provisions of sections 30.50.30 and 30.50.40, the provisions of this article shall be controlling.

(e) Findings. In approving or denying any permit required by this article, written findings shall be made for the particular permit sought, setting forth the factual basis for the decision in accordance with section 30.35.21.

(f) Conditions. In approving an application, the city may impose such conditions as it deems appropriate or necessary to further the purposes of this article, including, but not limited to, redesign or relocate the facility and resubmit a revised proposal for further consideration.

(g) Wireless Telecommunication Services Not Prohibited. Notwithstanding anything contained in this article to the contrary, no decision made pursuant to this article shall have the effect of prohibiting the provision of wireless telecommunication services in the city.

(h) Notification. Except for exempt facilities listed in section 30.35.13 and wireless telecommunication facilities that are in commercial or industrial zone districts and at least five hundred (500) feet from a residential dwelling, all residential property owners within five hundred (500) feet of a property on which a wireless telecommunications facility is proposed shall be notified of the wireless telecommunication facility application as provided in section 30.51.30(b). Applicants for wireless telecommunication facilities that are proposed in industrial or commercial zone districts and are within five hundred (500) feet of a residential dwelling shall provide notification to all residential uses in the five hundred (500) foot radius from the property boundaries of the proposed facility pursuant to the procedures in section 30.51.30(b) (Notices).

Table 35.1

Required Permit Matrix 

General Zoning Districts
Type of Permit	Residential Districts and Mixed Use Projects with Residential Uses	Commercial and Industrial Districts	Publicly Owned Property	Open Space Districts
Conditional use permit—planning commission review	All wireless telecommunication facilities except those designated in section 30.35.13, Exemptions, and 30.35.14(b)		All wireless telecommunication facilities except those designated in section 30.35.13, Exemptions, and 30.35.14(b)
Architectural and site review—staff review	All wireless telecommunication facilities except those designated in section 30.35.13, Exemptions, and 30.35.14(b)	All wireless telecommunication facilities except those designated in section 30.35.13, Exemptions, and 30.35.14(b)	All wireless telecommunication facilities except those designated in section 30.35.13, Exemptions, and 30.35.14(b)	All wireless telecommunication facilities except those designated in section 30.35.13, Exemptions, and 30.35.14(b)
Zoning clearance	All co-location applications pursuant to section 30.35.14(b), Permits Required	All co-location applications pursuant to section 30.35.14(b), Permits Required	All co-location applications pursuant to section 30.35.14(b), Permits Required	All co-location applications pursuant to section 30.35.14(b), Permits Required

(Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.15 Preapplication.

A preapplication conference is strongly encouraged for all wireless telecommunication proposals. For a new site two (2) preapplication submittals are encouraged. The first should take place at the earliest stage of looking for an appropriate site and include a map of the geographic service area and geographic area where the antenna site is proposed. A second preapplication submittal is recommended after the site is selected and should include a site review and architectural drawings illustrating the visual impacts of the project together with a radio frequency analysis of the proposed facility. For a proposed co-location, one (1) preapplication conference is strongly encouraged and should include site review and architectural drawings and a radio frequency analysis. A preapplication submittal is not considered a development application and no fee is charged for review of material submitted at this stage. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.16 Minimum application requirements.

Information to Be Provided. For all wireless telecommunications facilities, with the exception of co-locations, as defined in section 30.35.14(b), the applicant shall provide the information listed below. Applications for a wireless telecommunications facility shall be made upon a form to be provided by and shall be submitted to the planning division. Application requirements that contain an asterisk after the item are required for all applications that require a conditional use permit only. The number and size of plans shall be determined by the planning manager, who may waive certain submittal requirements or require additional information based on specific project factors. Applications for a co-location requiring a zoning clearance are not required to include the following subsections of this section: (d), Ten (10) Year Plan, (e), Cumulative Effects, or (h), Alternatives Analysis.

(a) Proposed Wireless Telecommunications Facility Plans.

(1) Site Review. Provide a site review plan, drawn to a measurable scale, showing the metes and bounds of the property, showing the location of existing features of the site including existing structures, roads, landscaping, trees and other significant natural features. The site review shall also show the location of each new structure to be located on the site, including telecommunications antennas, base transceiver stations, equipment cabinets and buildings, parking, lighting, and appurtenant structures including screening.

(2) Elevations. Provide elevations and identify heights of all proposed telecommunication structures and appurtenances and composite elevations from the street of all structures on site.

(3) Colored Elevations. Colored renderings or perspectives of the street elevation and any other elevation that will be visible from public view. A sample of colors and materials is required at the time of application submittal.

(4) Section Drawings. If applicable, section drawings shall be provided to show the foundations/footings of new structures and how they affect existing conditions, including landscaping.

(5) Visual Impact Demonstrations. Using photosimulations, photomontage, story poles, elevations or other visual or graphic illustrations, provide a visual impact demonstration to determine potential visual impact including proper coloration and blending of the facility with the proposed site.

(6) Visibility Impacts. If the installation is located where it is visible to the public, identify what elements of the proposed facility (including screening) can be viewed by the public.

(7) Landscape Plan. Provide a landscape plan that shows existing vegetation, indicating any vegetation proposed for removal, and identifying proposed plantings by type, size and location. If deemed necessary by the planning manager, an arborist’s report may be required to verify that the existing landscaping will not be adversely affected by the installation of the facility. The arborist’s report may recommend protective measures to be implemented during construction.

(8) Miscellaneous and Appurtenant Structures. Show all facility-related support and protection measures to be installed. This includes, but is not limited to, the location(s) and method(s) of placement, support, protection, screening, paint and/or other treatments of the antennas, base transceiver stations, equipment cabinets and buildings, cables, and other appurtenances to ensure public safety, ensure compatibility with urban design, architectural and historic preservation principles, and harmony with neighborhood character.

(9) Other Wireless Telecommunication Facilities. A plan showing telecommunication facilities of all wireless telecommunications service providers within one thousand (1,000) feet of the proposed site including facilities located outside the City of Gilroy, if applicable.

(b) Narrative.

(1) Antennas. List the number of antennas and base transceiver stations and/or equipment cabinets and buildings per site by your carrier and, if there are other installations on a site, list the number by each carrier.

(2) Location. Describe the location and type of antenna installations (stand-alone rooftop, rooftop attached to a mechanical penthouse or building facade) and location of the base transceiver station(s), equipment cabinets and/or buildings.

(3) Height. List the height from nearest adjacent grade to the top of the antennas installation(s).

(4) Radio Frequency. List the radio frequency range in megahertz and list the wattage output of the equipment.

(5) FCC Compliance. Provide a description stating that the system, including the antennas and associated base transceiver stations, equipment cabinets and buildings, conform to the radio-frequency radiation emission standards adopted by the FCC.

(6) Maintenance. Provide a description of the anticipated maintenance and monitoring program for the antennas and backup equipment, including frequency of maintenance services, backup service plans for disruption of service due to repair, testing, maintenance or monitoring activities.

(7) Environmental Assessment. Provide sufficient information to permit the city to make any required determination under the California Environmental Quality Act (CEQA).

(8) Noise/Acoustical Information. Provide noise and acoustical information for the base transceiver stations, equipment buildings and associated equipment such as air conditioning units and backup generators.

(9) Site Selection Process. Provide a description explaining the site selection process including information about other sites that were considered and reasons for their rejection. In addition, carriers must demonstrate that facilities have been designed to attain the minimum height required from a technological standpoint for the proposed site.

(10) A structural professional engineer’s written description of the proposed tower/facility structure and its capacity to support additional antennas or other communication facilities at different heights and the ability of the tower to be shortened if future communication facilities no longer require the original height.

(c) Geographic Service Area. Identify the geographic service area for the subject installation, including a map showing the site and the associated “next” cell sites within the network. Describe the distance between cell sites. Describe how this service area fits into and is necessary for the company’s service network. Illustrate the geographic area in which the facility could be located showing all other sites that could be used for antenna location.

(d) Ten (10) Year Plan. Provide a map showing how the proposed facility fits into the individual service provider’s network of existing and proposed antenna sites. Each application shall include a ten (10) year facilities plan. The ten (10) year plan shall include:

(1) Type of Technology. A written description of the types of technology to be provided to its customers over the next ten (10) years (e.g., cellular, PCS, ESMR).

(2) Radio Frequencies. A description of the radio frequencies to be used for each technology.

(3) Services. The type of consumer services (voice, video, data transmission) and consumer products (mobile phones, laptop PCs, modems) to be offered.

(4) All Facilities. Provide a list of all existing, existing to be upgraded or replaced, and proposed cell sites within the city for these services by your company.

(5) List of Information. Provide a list of the ten (10) year cell sites, with the following information:

a. List the cell sites by address and assessor’s parcel number.

b. The zoning district in which the site is located.

c. The type of building and the number of stories.

d. The name of the carrier (your company).

e. Appurtenant Equipment. The number of antennas and base transceiver stations, equipment cabinets and buildings per site by your carrier and, if there are other installations on a site, list the number by each carrier.

f. Location. Describe the location and type of antenna installation (stand-alone rooftop, rooftop attached to a mechanical penthouse or building facade) and location of the base transceiver station, equipment cabinets and buildings.

g. Height. List the height from grade to the top of the antenna installation(s), the radio frequency range in megahertz and the wattage output of the equipment.

(6) Ten (10) Year Map. Using the city zoning map as a base, show the ten (10) year cell sites. If individual properties are not known, show the geographic service areas of the cell sites.

(e) Cumulative Effects. Identify the location of the applicant’s antennas and backup facilities per building and number and location of other wireless telecommunication facilities on and near the property, including the following:

(1) Height. The height of all existing and proposed wireless telecommunications facilities on the property, shown in relation to the height limit for the district and measured from grade.

(2) Antennas. The dimensions of each existing and proposed antenna, base transceiver station, equipment cabinet and associated building and backup equipment on the property.

(3) Power Rating. The power rating for all existing and proposed backup equipment subject to the application.

(4) Ambient Radio Frequency. A report estimating the ambient radio frequency fields for the proposed site.

(5) Total Watts. The total number of watts per installation and the total number of watts for all installations on the building (roof or side).

(6) Facilities within One Hundred (100) Feet. The number and types of wireless telecommunication facilities within one hundred (100) feet of the proposed site and provide estimates of the cumulative electromagnetic radiation emissions at the proposed site.

(f) Other Permit Requirements. The application information required by sections 30.50.30(b) and 30.50.42 for the particular permit sought by the applicant (conditional use permit and/or architectural and site review application).

(g) Co-location Agreement. All telecommunications carriers shall provide a letter stating their willingness to allow other carriers to co-locate on their facilities wherever technically and economically feasible and aesthetically desirable. Telecommunication facility applicants shall also provide written notice to all telecommunication providers in the City of Gilroy stating their intent to locate a new wireless telecommunication facility and willingness to allow other carriers to co-locate on their facility. To facilitate co-location when deemed appropriate, conditions of approval for conditional use permits shall require all service providers to cooperate in the siting of equipment and antennas to accommodate the maximum number of operators at a given site where found to be feasible and aesthetically desirable. The applicant shall agree to allow future co-location of additional antennas and shall not enter into an exclusive lease for the use of the site.

(h) Alternatives Analysis. For applications for wireless communication facilities proposed to be located in any residential zone districts or within a PUD with residential uses, an alternatives analysis must be submitted by the applicant, subject to independent RF engineering review, which shall at a minimum:*

(1) Identify and indicate on a map at a minimum two (2) viable, technically feasible, and potentially environmentally equivalent or superior alternative locations for facilities within residential zone districts or PUDs with residential uses, which could eliminate or substantially reduce the significant gap(s) in the applicant carrier’s network intended to be eliminated or substantially reduced by the proposed facility. If there are fewer than two (2) such alternative locations, the applicant must provide evidence establishing that fact. The map shall also identify all locations where an unimpaired signal can be received to eliminate or substantially reduce the significant gap(s). For all non-co-located wireless communication facilities proposed in residential zone districts or PUDs with residential uses, the applicant must also evaluate the potential use of one (1) or more microcell sites (i.e., smaller facilities often mounted upon existing or replacement utility poles), and the use of repeaters, to eliminate or substantially reduce said significant gaps in lieu of the proposed facility. The applicant shall demonstrate that there is no feasible site or sites to provide coverage. The analysis shall also consider that the applicant may need to provide multiple, less obtrusive sites outside of a residential zone district or PUD with residential uses as opposed to one (1) site in the residential zone district to provide the same level of coverage. For each alternative location so identified, the applicant shall describe the type of facility and design measures that could be used at that location so as to minimize negative resource impacts (e.g., the use of stealth camouflaging techniques).

(2) Evaluate the potential for co-location with existing wireless communication facilities as a means to eliminate or substantially reduce the significant gap(s) in the applicant carrier’s network intended to be eliminated or substantially reduced by the proposed facility.

(3) Compare, across the same set of evaluation criteria and to similar levels of description and detail, the relative merits of the proposed site with those of each of the identified technically feasible alternative locations and facility designs. Such comparison analysis shall rank each of the alternatives (i.e., the proposed location/facility and each of the technically feasible location/design alternatives) in terms of impacts (i.e., from least to most environmentally damaging), and shall support such ranking with clear analysis and evidence.

(4) Include photosimulations of each of the alternatives (i.e., the proposed location/facility and each of the technically feasible location/design alternatives).

(5) Document good faith and diligent attempts to rent, lease, purchase or otherwise obtain the use of at least two (2) of the viable, technically feasible alternative sites which may be environmentally equivalent or superior to the proposed project site. The decision-making body may determine that an alternative site is not viable if good faith attempts to rent, lease, purchase or otherwise obtain the site have been unsuccessful.

(i) Security Plan. A plan for safety/security considerations, consistent with section 30.35.20 (NIER exposure). A detailed description of the proposed measures to ensure that the public would be kept at a safe distance from any NIER transmission source associated with the proposed wireless communication facility, consistent with the NIER standards of the FCC or any potential future superseding standards, must be submitted as part of the application. The submitted plans must also show that the outer perimeter of the facility site (or NIER hazard zone in the case of rooftop antennas) will be posted with bilingual NIER hazard warning signage that also indicates the facility operator and an emergency contact. The emergency contact shall be someone available on a twenty-four (24) hour a day basis who is authorized by the applicant to act on behalf of the applicant regarding an emergency situation. For the protection of emergency response personnel, each wireless communication facility shall have an on-site emergency shutoff switch to de-energize all RF-related circuitry/componentry at the base station site (including a single shutoff switch for all facilities at a co-location site), or some other type of emergency shutoff by emergency personnel acceptable to the local fire chief, unless the applicant can prove that the FCC public exposure limits cannot be exceeded in the vicinity of the proposed facility, even if firefighters or other personnel work in close proximity to the antenna(s) or other RF radiation-emitting devices/components.

(j) Applications in Residential Zone Districts and PUDs with Residential Uses. For applications for new wireless communication facilities in any residential zone districts or PUDs with residential uses, the applicant must also disclose:*

(1) Number, type(s), manufacturer(s) and model number(s) for all antennas and other RF-generating equipment.

(2) For each antenna, the antenna gain and antenna radiation pattern.

(3) Number of channels per antenna, projected and maximum.

(4) Power input to each antenna.

(5) Power output, in normal use and at maximum output for each antenna and all antennas as an aggregate.

(6) Output frequency of the transmitter(s).

(k) Fees. Payment of all filing fees and fees for processing and monitoring the permit application as established in the comprehensive fee schedule.

(l) NIER Report. Submission of a NIER (nonionizing electromagnetic radiation calculations) report in accordance with section 30.35.20.

(m) Independent Review. The planning manager is explicitly authorized, at his/her discretion, to employ on behalf of the city an independent technical expert to review any technical materials submitted including, but not limited to, those required under this article and in those cases where a technical demonstration of unavoidable need or unavailability of alternatives is required. The applicant shall pay all the costs of such review including any administrative costs incurred by the city at the time the application is filed.

(n) Additional Information. The planning manager may require the applicant to submit additional documentation prepared at the applicant’s cost, which the planning manager deems necessary to evaluate the proposed site or facility, including, but not limited to, identifying locations where a facility can be installed without prohibiting the service provider’s ability to provide its telecommunications service, information concerning the applicant’s network of telecommunications facilities, site selection criteria and radio frequency emission coverage. The planning commission may also require the service provider to submit additional information based on issues raised at the public hearing that are likely to be of significant concern to the community. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.17 General requirements.

The following shall be met for all telecommunication facilities in all zoning districts:

(a) Compliance with Plans and Policies. Any applicable general plan goals, objectives, programs and policies, specific plan, PUD standards, design guidelines, and the permit requirements of any agencies which have jurisdiction over the project.

(b) Compliance with the Gilroy Municipal Code and Zoning Ordinance. All the requirements established by the Gilroy Municipal Code and Gilroy Zoning Ordinance which are not in conflict with the requirements contained in this article.

(c) Compliance with the Uniform Codes. Requirements of the Uniform Building Code, National Electrical Code, Uniform Plumbing Code, Uniform Mechanical Code, and Uniform Fire Code, as amended, where applicable.

(d) Compliance with Easements or Other Restrictions. Any applicable easements or similar restrictions on the subject property.

(e) Compliance with the Setbacks. Wireless telecommunication facilities shall not be located in any required yard setback area of the zoning district in which it is located with the exception of possible encroachment of the antenna array into airspace over said setback, unless exempted from these requirements pursuant to section 30.35.13. All setbacks shall be measured from the base of the tower or structure closest to the applicable property line or structure.

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

(g) Compliance with FAA Rules. All wireless telecommunication facilities shall comply with all Federal Aviation Administration requirements.

(h) Aviation Safety. No wireless communication facility shall be installed within the safety zone or runway protection zone of any airport, airstrip or helipad within or adjacent to the city unless the airport owner/operator indicates that it will not adversely affect the operation of the airport, airstrip or helipad. In addition, no wireless communication facility shall be installed at a location where special painting or lighting will be required by the FAA regulations unless the applicant has demonstrated to the planning manager that the proposed location is the only technically feasible location for the provision of personal wireless services as required by the FCC.

(i) Compliance with the Security Program. All telecommunication facilities shall maintain in place a security program, when determined necessary by and subject to the review and approval of the police chief, that will prevent unauthorized access and vandalism.

(j) Compliance with the Height of Satellite Dish and Parabolic Antennas. Satellite dish and parabolic antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function.

(k) Impact on Parking. Installation of the wireless telecommunication facilities shall not reduce the required parking on the site.

(l) Stealth Requirements. Wireless telecommunications facilities that are proposed in residential zone districts or PUDs with residential uses shall use stealth techniques to minimize the visual impact of the telecommunication facility from all surrounding locations.

(m) Access Control. In addition to providing visual screening, each antenna site shall be required to provide warning signs, fencing, anticlimbing devices, or other techniques to control access to the facilities in order to prevent unauthorized access and vandalism. The use of fencing shall not unnecessarily add to the visual impact of the facility, and the design of the fencing and other access control devices shall be subject to the planning manager or planning commission review and approval, whichever is applicable. Pursuant to subsection (i) of this section, the police chief shall review and approve the type of anticlimbing device.

(n) Telecommunication Facilities—Critical Disaster Response Facility. All wireless telecommunication facilities providing service to the government and general public shall be designed to survive a natural disaster without interruption of operation. To this end, all the following measures shall be implemented:

(1) The telecommunication tower when fully loaded with antennas, transmitters, and other equipment and camouflaging shall be designed to withstand the forces expected during the “maximum credible earthquake.” All equipment mounting racks and equipment used shall be anchored in such a manner that such a quake will not tip them over, throw the equipment off its shelves, or otherwise act to damage it.

(2) All connections between various components of the facility and with necessary power and telephone lines shall be protected against damage by fire, flooding, and earthquake.

(3) Measures shall be taken to keep the facility in operation in the event of a disaster, including installation of backup generators.

(4) Demonstration of compliance with these requirements shall be provided via a certification on the plans signed by a structural engineer or other appropriate professional licensed by the State of California.

(o) Length of Permit.

(1) Use permits and architectural and site review permits for all wireless telecommunication facilities shall expire ten (10) years after permit approval. An approval may be extended administratively from the initial approval date for a subsequent ten (10) years and may be extended by the planning manager every ten (10) years thereafter upon verification of the wireless service provider’s continued compliance with the findings and conditions of approval under which the application was originally approved. Costs associated with the review process shall be borne by the wireless service provider. The planning manager may schedule a public hearing at which the planning commission may deny the renewal of an approval if they find that:

a. The report showing that the wireless telecommunication service facility complies with the current FCC radio frequency standards, as required in section 30.35.16(b)(5), has not been submitted to the planning division.

b. The wireless telecommunication service facility fails to comply with the requirements of this article as they exist at the time of renewal, and the wireless service provider has failed to supply assurances acceptable to the planning manager that the facility will be brought into compliance within ninety (90) days.

c. The wireless telecommunication service provider has failed to comply with the conditions of approval imposed.

d. The wireless telecommunication service facility has not been properly maintained in accordance with section 30.35.23.

e. The wireless telecommunication service provider has not agreed in writing to upgrade the wireless telecommunication service facility within six (6) months to minimize the facility’s adverse visual impact to the greatest extent permitted by the technology that exists at the time of renewal. The planning manager shall determine if a new technology shall further minimize a facility’s adverse visual impact and if a facility shall be required to be upgraded. A wireless telecommunication service facility shall not be upgraded if it continues to comply with the requirements of this article as they exist at the time of renewal.

f. Notwithstanding the foregoing, no public hearing to schedule a denial of an extension pursuant to this article shall be calendared until the planning manager has first provided a written notice to the wireless telecommunication service provider including with reasonable specificity: (1) the nature of the deficiency or violation; (2) a reasonably ascertainable means to correct such deficiency or violation; and (3) a reasonable opportunity to cure the same if the deficiency or violation is curable, which time period in no event shall be less than thirty (30) days from the date of notification or such lesser period as may be warranted by virtue of a public emergency.

(2) If an approved wireless telecommunication facility meets the requirements of this article, but it is no longer allowed in its applicable zoning district, the wireless service facility shall be permitted to remain for ten (10) years from the date the facility became a nonconforming use in the zone district, unless the owner of the facility can prove to the satisfaction of the city that a longer period of time is required to fully amortize the investment in the existing structure.

(3) A nonconforming personal wireless service facility shall not be altered or modified unless approved by the planning manager subject to a determination that the alteration or modification will cause the personal wireless service facility to be in greater conformance with this article.

(4) The planning manager’s decision to deny a renewal may be appealed as described in section 30.35.25.

(5) At the planning manager’s request, the personal wireless service provider shall provide a written summary certifying the commencement date and expiration date of any lease, license, property right, or other use agreement for the personal wireless service facility, including any options or renewal terms contained therein.

(6) An approval for a wireless telecommunication service facility may be modified or revoked by the planning commission as described in section 30.35.27.

(p) FCC and Other Agency Standards. All towers must meet or exceed current standards and regulations of the FCC and any other agency of the federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this article shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner’s expense.

(q) Security Requirement. Prior to issuance of any permits for new wireless telecommunications facilities, or prior to renewing a conditional use permit or architectural and site review permit for an existing wireless telecommunications facility, the applicant shall provide a bond or an irrevocable letter of credit that explicitly covers the full life of the wireless telecommunications facility or other reasonable form of security, satisfactory to the city attorney, in an amount reasonably sufficient to cover the cost of removal, for the removal of the facility in the event that its use is abandoned or its conditional use permit or architectural and site review permit expires or is terminated and the equipment is not voluntarily removed within thirty (30) days of termination of the facility operations.

(r) Cessation of Operations.

(1) Within thirty (30) days of cessation of operations of any wireless telecommunications facility approved pursuant to this article, the operator shall notify the planning manager in writing. The permit for said wireless telecommunications facility shall be deemed lapsed and of no further effect six (6) months thereafter unless:

a. The planning manager has determined that the same operator resumed operation within six (6) months of the notice, or

b. The city has received an application to transfer the permit to another operator.

(2) No later than thirty (30) days after a permit has lapsed under subsection (r)(1) of this section, the operator shall remove all wireless telecommunication facilities from the site. If the operator fails to do so, the property owner shall be responsible for removal. The property owner shall be entitled to reimbursement for the cost of removal from any bond or other assurances provided by the operator pursuant to the requirements of subsection (q) of this section. If such facilities are not removed, the site shall be deemed to be a nuisance, and the city may call the bond or letter of credit to pay for removal of the facilities and remediation of the site.

(3) Failure to inform the planning manager of cessation of operations of any existing facility shall constitute a violation of the Zoning Ordinance and be grounds for:

a. Revocation or modification of the permit;

b. Calling of any bond or other assurance; and/or

c. Removal of the facilities.

(s) Nonconforming Wireless Telecommunication Facilities.

(1) A lawfully established wireless telecommunication facility that was in operation on December 11, 2003, when the ordinance codified in this article was originally codified, but did not conform to the provisions of that ordinance, shall be deemed a legal nonconforming use, provided it did not substantially change its lawfully established base station, physical configuration, location and/or use and shall be allowed to continue operation for a period of ten (10) years following the effective date of the original ordinance, unless the owner of the facility can prove to the satisfaction of the city that a longer period of time is required to fully amortize the investment in the existing structure.

(2) A lawfully established wireless telecommunication facility that is in operation on the effective date of Ordinance 2018-04, but no longer conforms to the provisions of this ordinance shall be deemed a legal nonconforming use, provided it does not substantially change its use and shall be allowed to continue operation for a period of ten (10) years, following the effective date of Ordinance 2018-04,unless the owner of the facility can prove to the satisfaction of the city that a longer period of time is required to fully amortize the investment in the existing structure.

(t) Interference. All personal wireless service facilities shall be operated in a manner which complies with the Federal Communications Commission's regulations regarding signal interference.

(u) Advertising. No advertising shall be placed on personal wireless service facilities. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18)

30.35.18 Modifications constituting a “substantial change.”

For the purpose of implementing section 30.35.17(s), Nonconforming Wireless Telecommunication Facilities, and section 30.35.19(d), Height, the following definition of “substantial change” shall refer to a single change, or a series of changes over time (whether made by the same or different entities), viewed against the baseline conditions for the wireless tower or base station that would have any of the effects described below:

(1) Wireless tower located outside the public right-of-way:

a. Height. The proposed co-location or modification would increase the height more than ten percent (10%), or the height of one (1) additional antenna array would be more than twenty (20) feet above the height of the nearest existing antenna (whichever is greater); and

b. Width. The proposed co-location or modification would protrude from the edge of the tower either more than twenty (20) feet, or more than the width of the tower structure at the level of the existing appurtenance, whichever is greater.

(2) Wireless tower located in the public right-of-way:

a. Height. The proposed co-location or modification would increase the height more than ten percent (10%) or ten (10) feet above the originally approved height (whichever is greater); and

b. Width. The proposed co-location or modification would protrude from the edge of the originally approved structure by more than six (6) feet.

(3) Base station wherever located:

a. Height. The proposed co-location or modification would increase the height of the base station more than ten percent (10%) or ten (10) feet above the originally approved height (whichever is greater); and

b. Width. The proposed co-location or modification would protrude from the edge of the originally approved base station structure by more than six (6) feet.

(4) Additional Equipment Cabinets. The proposed co-location or modification would involve adding more than the standard number of new equipment cabinets for the technology involved, but in no event shall exceed four (4) new equipment cabinets.

(5) Work Outside Existing Boundaries. A proposal that includes excavation or development of equipment outside the boundaries of the controlled, leased, or owned property surrounding the wireless tower and base station and any access or utility easements related to the site.

(6) Change in the Approved Appearance. A proposal to alter or expand the exterior of any wireless communication facility or base station that was originally approved as stealth or camouflaged that changes the facility in a manner that it shall no longer be considered stealth or camouflaged.

(7) Violation of Condition of Approval. The proposed co-location or modification would violate an existing condition of approval, unless the noncompliance is due to an increase in height, increase in width, addition of cabinets, new excavation, or aesthetic change that does not exceed the corresponding “substantial change” thresholds identified in subsections (1) through (6) of this section with respect to a wireless tower or base station.

(8) Site Alterations. A proposal that would alter required access, parking, or landscaping from that shown on the originally approved site plans.

(9) Replacement of Facility. A proposal to replace the wireless tower or foundation.

(10) Violation of Regulations. A proposal to alter the width, bulk, or arrangement of a wireless communication facility that may violate any law, rule, regulation, or other requirement intended to protect public health and safety. (Ord. No. 2018-04, § 1, 1-22-18)

30.35.19 Structural, design and environmental standards.

(a) Structural Requirements. A building permit shall be required for the construction, installation, repair or alteration of any support structure for communication equipment.

(b) Basic Tower and Building Design. All telecommunication facilities, except exempt facilities as defined in section 30.35.13, shall be designed to blend into the surrounding environment to the greatest extent feasible. To this end, all of the following measures shall be implemented:

(1) Telecommunication towers shall be constructed out of metal or other nonflammable material and shall be painted a color approved by the decision-making body, unless the color or materials are specifically conditioned by the city to be otherwise;

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

(3) Satellite dishes other than microwave dishes shall be of mesh construction, except where technical evidence acceptable to the appropriate decision-making body is submitted showing that this is infeasible;

(4) Telecommunication support facilities (e.g., vaults, equipment rooms, utilities, and equipment enclosures) shall be constructed out of nonreflective materials (visible exterior surfaces only) and shall be placed in underground vaults to the extent possible;

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

(6) All buildings, poles, towers, antenna supports, antennas, and other components of each telecommunications facility shall be initially painted and thereafter repainted as necessary with a “flat” paint. The color shall be selected by the appropriate decision-making body;

(7) Wireless communication facilities proposed for visually prominent ridgeline, hillside or hilltop locations shall be discouraged and, if deemed necessary, be sited and designed to be as visually unobtrusive as possible. Said wireless telecommunication facilities should be sited so the top of the proposed tower/facility is below any ridgeline when viewed from public roads in the vicinity. If the tower must extend above a ridgeline, the applicant must camouflage the tower by utilizing stealth techniques and hiding it among surrounding vegetation; and

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

(c) Location. All telecommunication facilities shall be located so as to minimize their visibility and the number of distinct facilities present. To this end all of the following measures shall be implemented for all telecommunications facilities, unless exempted from these measures pursuant to section 30.35.13:

(1) Proposed telecommunication towers shall be set back at a minimum of the overall tower height from all property lines and/or a distance consistent with the required yard setbacks of the particular zone district, whichever is most restrictive. Guy wire anchors shall be set back at least twenty (20) feet from any property line. This section shall not apply to building-mounted antennas attached to existing facilities, but it shall apply to any related facilities associated with such antennas. This requirement may not apply to antennas proposed to be co-located on existing towers or utility poles (e.g., microcell sites, DAS, small cells), nor to underground equipment shelters, located in public right-of-way, if it would prohibit use of the proposed facility site.

(2) Location Preference. Location preference for wireless telecommunication facilities shall be given to:

a. Industrial or commercial sites;

b. Facilities attached or sited adjacent to existing structures. Appropriate types of existing structures may include, but are not limited to: buildings, telephone and utility poles, signage and sign standards, light standards, and roadway overpasses; and

c. Sites that are not highly visible from adjacent roadways.

(3) Preferred Antenna Siting and Mounting Techniques. The following antenna and equipment siting and mounting techniques are preferred:

a. Facade-mounted antennas;

b. Roof-mounted antennas that are not visible to the public; and

c. Monopole antennas that utilize stealth or camouflaging techniques.

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

Towers proposed in the commercial, industrial, public facilities and residential zone districts shall meet the height limitation for the underlying zone district. Increases to the height limitation may be approved with the architectural and site review application if the modification does not substantially change the physical dimensions of a telecommunications tower or base station. Any applications for towers of a height more than the allowed height for structures in the zoning district must include a written justification proving the need for a tower of that height and the absence of viable alternatives that would have less visual impact. Tower height increases beyond the permitted maximum height stated in this subsection shall require a variance approval pursuant to section 30.50.21(a).

(e) Lighting. Any exterior lighting, except as required for FAA regulations for airport safety, shall be manually operated and used only during night maintenance checks or in emergencies. The lighting shall be constructed or located so that only the intended area is illuminated and off-site glare is fully controlled.

(f) Roads and Parking. Except exempt facilities as defined in section 30.35.13, all telecommunication facilities shall be served by the minimum roads and parking areas necessary and shall use existing roads and parking areas whenever possible.

(g) Vegetation Protection and Facility Screening.

(1) Except exempt facilities as defined in section 30.35.13, all telecommunications facilities shall be installed in such a manner so as to maintain and enhance existing native vegetation and shall include suitable mature landscaping to screen the facility, where necessary. For purposes of this section, “mature landscaping” shall mean trees, shrubs or other vegetation of a size that will provide the appropriate level of visual screening immediately upon installation.

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

(h) Fire Prevention. All telecommunication facilities shall be designed and operated in such a manner so as to minimize the risk of igniting a fire or intensifying one that otherwise occurs. To this end all of the following measures shall be implemented for all telecommunication facilities, when determined necessary by the fire chief, unless exempted from these measures by section 30.35.13:

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

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

(3) Rapid entry (KNOX) systems shall be installed as required by the fire chief;

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

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

(i) Environmental Resource Protection. All telecommunication facilities shall be located so as to minimize the effect on environmental resources. To that end, all facilities deemed to be a project shall be subject to review for environmental considerations.

(j) Noise and Traffic. All telecommunication facilities shall be constructed and operated in such a manner as to minimize the amount of disruption caused to nearby properties. To that end, all the following measures shall be implemented for all telecommunication facilities, unless exempted from these measures by section 30.35.13:

(1) Outdoor noise-producing construction activities shall only take place between the hours of 8:00 a.m. and 6:00 p.m. unless allowed at other times by the planning manager or the planning commission; and

(2) Backup generators shall only be operated during power outages and for testing and maintenance purposes. If the facility is located within one hundred (100) feet of a residential dwelling unit, noise attenuation measures shall be included to reduce noise levels at the facility to a maximum exterior noise level of sixty (60) Ldn at the property line and a maximum interior noise level of forty-five (45) Ldn. Testing and maintenance shall only take place on weekdays between the hours of 8:00 a.m. and 6:00 p.m.

(k) Visual Compatibility. Facility structures and equipment shall be located, designed and screened to blend with the existing natural or built surroundings, as well as any existing supporting structures, so as to reduce visual impacts to the extent feasible. Facilities that are proposed in residential zone districts or in PUDs with residential uses shall be designed to be compatible in scale, mass and height with the character of surrounding uses through camouflage or stealth techniques that will minimize their visual impacts. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.18)

30.35.20 NIER exposure.

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

(b) Initial Compliance with NIER Levels. Initial compliance with this requirement shall be demonstrated for any facility through submission, at the time of application for the necessary permit or entitlement, of NIER (nonionizing electromagnetic radiation) calculations specifying NIER levels where the levels produced are projected to be highest. If these calculated NIER levels exceed eighty percent (80%) of the NIER standard established by this article, the applicant shall hire a qualified electrical engineer licensed by the State of California to measure NIER levels at said location after the facility is in operation. A report of these measurements and the findings with respect to compliance with the established NIER standard shall be submitted to the planning manager. NIER monitoring shall be conducted utilizing the monitoring protocol described in section 30.35.11. Said facility shall not commence normal operations until it complies with this standard. Proof of said compliance shall be a certification provided by the engineer who prepared the original report. In order to assure the objectivity of the analysis, the city may require, at the applicant’s expense, independent verification of the results of the analysis. Because of their intermittent nature, facilities solely for personal use, such as citizens band radio antenna or antenna operated by a federally licensed amateur radio operator as part of the amateur radio service, or for the incidental use of a co-located commercial activity, shall be required to comply with applicable FCC rules for NIER emissions, but they shall be routinely exempt from the submission requirements in this article.

(c) Ongoing Compliance with NIER Levels. Within ninety (90) days of operation, every telecommunication facility and all broadcast radio and television facilities shall demonstrate continued compliance with the NIER standard established by this article. Every two (2) years a report listing each transmitter and antenna present at the facility and the effective radiated power radiated shall be submitted to the planning manager. If either the equipment or effective radiated power has changed, calculations specifying NIER levels where said levels are projected to be highest shall be prepared. NIER calculations shall also be prepared every time the adopted NIER standard changes. If calculated levels in either of these cases exceed eighty percent (80%) of the standard established by this article, the operator of the facility shall hire a qualified electrical engineer licensed by the State of California to measure the actual NIER levels produced. A report of these calculations, required measurements, if any, and the author’s/engineer’s findings with respect to compliance with the current NIER standard shall be submitted to the planning manager within ninety (90) days of facility approval and every two (2) years thereafter. In the case of a change in the standard, the required report shall be submitted within ninety (90) days of the date said change becomes effective.

(d) Failed Compliance. Failure to supply the required reports or to remain in continued compliance with the NIER standard established by this article shall be grounds for revocation of the major and minor development permit or other entitlement. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.19)

30.35.21 Required findings for wireless telecommunication facilities.

In order to grant any permit for a wireless telecommunication facility, the approving body shall make the required permit findings of section 30.50.30(b) (Conditional Use Permit—Application) as well as the following findings:

(a) That either: (1) the development of the proposed wireless telecommunications facility as conditioned will not significantly affect any visual resources, environmentally sensitive habitat and/or other significant City of Gilroy resources, including agricultural, open space, and community character resources; or (2) there are no other environmentally equivalent and/or superior and technically feasible alternatives to the proposed wireless telecommunications facility as conditioned (including alternative locations and/or designs) with less visual and/or other resource impacts and the proposed facility has been modified by condition and/or project design to minimize and mitigate its visual and other resource impacts.

(b) That the site is adequate for the development of the proposed wireless telecommunications facility and, for sites located in residential zoning districts or PUDs with residential uses, that the applicant has demonstrated that there are not environmentally equivalent or superior and technically feasible: (1) alternative sites outside residential zone districts or PUDs with residential uses; and/or (2) alternative designs for the proposed facility as proposed and conditioned.

(c) That the subject property upon which the wireless telecommunications facility is to be built is in compliance with all rules and regulations of the City of Gilroy, including, but not limited to, zoning uses, subdivisions and any other applicable provisions of this article, and that all zoning violations have been abated and abatement costs, if any, have been paid.

(d) That the proposed wireless communication facility as conditioned is in compliance with all FCC, FAA and California PUC standards and requirements.

(e) Any decision to deny a permit for a wireless communication facility shall be in writing and shall specifically identify the reasons for the decision. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.20)

30.35.22 Implementation and monitoring costs.

The wireless telecommunications service provider or its successors shall be responsible for the payment of all reasonable costs associated with the monitoring of the conditions of approval contained in this authorization, including costs incurred by the city, the office of the city attorney or any other appropriate city department or agency. The planning division shall collect such costs on behalf of the city. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.21)

30.35.23 Operation and maintenance standards.

All wireless telecommunication facilities shall comply at all times with the following operation and maintenance standards:

(a) All facilities and related equipment, including lighting, fences, shields, cabinets, and poles, shall be maintained in good repair, free from trash, debris, litter and graffiti and other forms of vandalism, and any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight. Graffiti shall be removed from any facility or equipment as soon as practicable pursuant to Chapter 12.5.

(b) Each facility which contains trees, foliage or other landscaping elements, whether or not used as screening, shall be maintained in good condition at all times, and the owner or operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping promptly.

(c) Each facility for which a landscape plan was required and approved shall maintain the facility and site in accordance with the approved landscape plan at all times. Amendments or modifications to the plan shall be submitted for approval to the planning manager.

(d) Each facility shall be operated in such a manner so as to minimize any possible disruption caused by noise. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 6:00 p.m. and 8:00 a.m. At no time shall equipment noise from any source exceed an exterior noise level of sixty (60) dB at the property line.

(e) Each owner or operator of a facility shall routinely and regularly inspect each site to ensure compliance with the standards set forth in this article.

(f) Each owner or operator of a wireless telecommunications facility shall provide signage identifying the name and phone number of a party to contact in event of an emergency. The design, materials, colors, and location of signs shall be subject to design review. The signage shall be attached to the base of any utility pole or light standard to which microcells are affixed. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.22)

30.35.24 Telecommunications Act exception procedures.

If the application of the requirements or limitations set forth in this article would have the effect of violating the Federal Telecommunications Act as amended, the approving body shall grant a Telecommunications Act exception to allow an exception to the offending requirement or application. The applicant shall have the burden of proving that application of the requirement or limitation would violate the Federal Telecommunications Act, and that no alternatives exist, which would render the approval of a Telecommunications Act exception unnecessary. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.23)

30.35.25 Appeal procedures.

Appeals to the denial or conditional approval of a wireless telecommunication application shall be filed in accordance with section 30.51.50. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.24)

30.35.26 Transfer of operation.

Any carrier/service provider authorized by the planning manager or by the planning commission to operate a specific wireless telecommunications facility may assign the operation of the facility to another carrier licensed by the FCC for that radio frequency; provided, that such transfer is made known to the director in advance of such operation and all conditions of approval for the subject installation are carried out by the new carrier/service provider. However, the carrier/service provider may, without advance notification, transfer operations of the facility to its general partner or any party controlling, controlled by or under common control with the carrier/service provider licensed by the FCC for that radio frequency. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.25)

30.35.27 Revocation of permit.

Failure to Comply with Any Condition Basis for Revocation. The wireless telecommunications service provider or its successors shall comply fully with all conditions specified in this authorization. Failure to comply with any condition shall constitute grounds for revocation of the permit. The planning manager shall notify the service provider that a violation exists and request compliance and a schedule for said compliance. Upon failure to comply, or if the schedule for compliance will not bring the use into compliance in a reasonable amount of time, the planning manager may schedule a public hearing before the planning commission to receive testimony and other evidence relating to the violation of a condition of the authorization of the use of the facility, and finding that violation, the commission may modify or revoke the permit. Such revocation by the planning commission may be appealed to the city council. All hearings shall be noticed and conducted in accordance with the proceedings set forth in section 30.51.60. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.26)

30.35.28 Indemnity and liability.

(a) The personal wireless service provider shall defend with counsel of city’s choice, indemnify and hold harmless the city or any of its boards, commissions, agents, officers, and employees from any liability, claim, action, regulation, order or proceeding against the city, its boards, commissions, agents, officers, or employees to attack, modify, set aside, void, or annul the approval of the project, unless such liability, claim, action, regulation, order or proceeding results from the city’s negligence or willful misconduct. The city shall promptly notify the personal wireless service providers of any such claim, action, regulation, order or proceeding. Nothing contained in this subsection shall prohibit the city from participating in a defense of any claim, action, or proceeding of the city.

(b) Personal wireless service providers shall be strictly liable, and shall defend with counsel of city’s choice, indemnify and hold harmless the city, for any and all liability, claim, action, regulation, order or proceeding alleging pollution or contamination arising from their personal wireless service facilities within the city. This liability shall include cleanup, injury or damage to persons or property. Additionally, personal wireless service providers shall be responsible for any sanctions, fines, or other monetary costs or injunctive relief imposed upon the personal wireless service provider or the city as a result of the release of pollutants from their operations.

(c) Personal wireless service providers shall be strictly liable, and shall defend with counsel of city’s choice, indemnify and hold harmless the city, for any and all liability, claim, action, regulation, order or proceeding alleging electromagnetic waves or radio frequency emissions within the city in excess of the Federal Communications Commission’s standards. This liability shall include cleanup, injury or damage to persons or property. Additionally, personal wireless service providers shall be responsible for any sanctions, fines, or other monetary costs or injunctive relief imposed upon the personal wireless service provider or the city as a result of the release of pollutants from their operations. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2018-04, § 1, 1-22-18. Formerly 30.35.27)