Chapter 17.41
WIRELESS COMMUNICATION FACILITIES

Sections:

17.41.010    Purpose and intent.

17.41.020    Definitions.

17.41.030    Applicable facilities.

17.41.040    Application procedures in general.

17.41.050    Wireless facility permit application content.

17.41.060    Required findings of approval for wireless permits.

17.41.070    Standards for wireless facilities.

17.41.080    Standard conditions of approval.

17.41.090    Provisions applicable to small wireless facilities.

17.41.100    Appeals.

17.41.110    Independent consultant review.

17.41.120    Maintenance.

17.41.130    Removal of abandoned facilities.

17.41.140    Ownership transfers.

17.41.150    Revocation of a wireless facility permit.

17.41.160    Exception from standards.

17.41.170    Violations.

17.41.180    Severability.

17.41.010 Purpose and intent.

A.    The purpose of this chapter is to promote and protect the public health, safety and welfare, preserve the aesthetic character of the Lakeport community, and to reasonably regulate the development and operation of wireless communication facilities within the city to the extent permitted under state and federal law.

B.    This chapter establishes clear guidelines and standards and an orderly process for expedited permit application review intended to facilitate the orderly deployment of wireless transmission equipment to provide advanced communication services to the city, its residents, businesses, and community at large.

C.    The regulations in this city 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 communications 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 hereinafter also referred to as "FCC."

D.    This chapter shall be interpreted and applied so as to be consistent with the Communications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, applicable state laws, and administrative and court decisions and determinations relating to same. (Ord. 921 §2(part), 2019)

17.41.020 Definitions.

This section shall be construed in light of the following definitions:

"Accessory equipment" means any equipment installed, mounted, operated or maintained in close proximity to a wireless communication facility to provide power to the wireless communication facility or to receive, transmit or store signals or information received by or sent from a wireless communication facility.

"Antenna structure" means any antenna, any structure designed specifically to support an antenna or any appurtenances mounted on such a structure or antenna.

"Base station" means the equipment and nontower supporting structure at a fixed location that enable FCC licensed or authorized wireless communications between user equipment and a communications network.

"City" means the city of Lakeport.

"Collocation" means the mounting or installation of an antenna on an existing tower, building or structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

"Director" means the city of Lakeport community development director or his or her designee.

"Equipment cabinet" means any transmission or other equipment other than an antenna housed within a protective case. An equipment cabinet may be indoors or outdoors, large or small, movable or immovable. Any equipment case with a heat sink or other cooling mechanism for the equipment inside qualifies as an equipment cabinet.

"Nontower support structure" means any structure (whether built for wireless purposes or not) that supports wireless transmission equipment under a valid permit at the time the applicant submits its application.

"Open space" includes (1) land which is designated as an open space district, as defined in Chapter 17.14, (2) land in residential zones upon which structures may not be developed by virtue of a restriction on title, (3) all common areas, public and private parks, slope easements, recreational areas and open portions of recreational facilities, and (4) any other area owned by a homeowners’ association or similar entity.

"Personal communication service" means commercial mobile services provided under a license issued by the FCC.

"RF" means radio frequency.

"Significant gap" as applied to an applicant’s personal communication service or the coverage of its wireless communication facilities is intended to be defined in this section consistently with the use of that term in the Communications Act of 1996 and case law construing that statute. Provided, that neither that Act nor case law construing it requires otherwise, the following guidelines shall be used to identify such a significant gap:

1.    A significant gap may be demonstrated by in-kind call testing.

2.    The commission shall accept evidence of call testing by the applicant and any other interested person and shall not give greater weight to such evidence based on the identity of the person who provides it but shall consider (a) the number of calls conducted in the call test, (b) whether the calls were taken on multiple days, at various times, and under differing weather and vehicular traffic conditions, and (c) whether calls could be successfully initiated, received and maintained in the area within which a significant gap is claimed.

3.    A significant gap may be measured by:

a.    The number of people affected by the asserted gap in service;

b.    Whether a wireless communication facility is needed to merely improve weak signals or to fill a complete void in coverage; and

c.    Whether the asserted gap affects a state highway or an arterial street which carries significant amounts of traffic.

"Small wireless facility" refers to a small wireless facility as defined by the FCC and that meets the following requirements:

1.    The small wireless facilities:

a.    Are mounted on structures fifty feet or less in height including their antennas, or

b.    Are mounted on structures no more than ten percent taller than other adjacent structures, or

c.    Do not extend existing structures on which they are located to a height of more than fifty feet or by more than ten percent, whichever is greater;

2.    Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume;

3.    All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment, is no more than twenty-eight cubic feet in volume;

4.    The facilities do not require antenna structure registration under 47 CFR Section 17.1 et seq.;

5.    The facilities are not located on tribal lands; and

6.    The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified in 47 CFR Section 1.1307(b).

"Stealth facility" means a wireless communication facility designed and constructed to be integrated into a building or other structure, or placed on or within a building or other structure, so that no portion of any equipment cabinet, transmission equipment, or any other apparatus associated with facility’s function is visible from publicly accessible areas.

"Transmission equipment" means any equipment that facilitates transmission for any FCC licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas and other relevant equipment associated with and necessary to their operation, including coaxial or fiber-optic cable, and regular and back-up power supply.

"Wireless" means any FCC authorized wireless communications service.

"Wireless communication facility" or "wireless facility" or "facility" means any facility that transmits and/or receives electromagnetic waves, including, but not limited to, commercial wireless communications antennas and other types of transmission equipment for the transmission or receipt of such signals, towers or similar structures supporting said equipment, equipment cabinets and connectors, pedestals, meters, tunnels, vaults, splice box, surface location marker, equipment, equipment buildings, parking areas and other related improvements used, or designed to be used, to provide wireless transmission of voice, data, images or other information. The term also means any facility or transmission equipment used to provide any FCC authorized wireless communications service including, but not limited to, personal wireless services defined by the Communications Act of 1996 and licensed by the FCC, including, but not limited to, the types commonly known as cellular, personal communications services ("PCS"), specialized mobile radio ("SMR"), enhanced specialized mobile radio ("ESMR"), paging, ground based repeaters for satellite radio services, micro-cell antennas, distributed antenna systems ("DAS") and similar systems.

"Wireless tower" means any structure built for the sole or primary purpose of supporting any FCC licensed or authorized antennas and their associated facilities. (Ord. 921 §2(part), 2019)

17.41.030 Applicable facilities.

This section applies to all proposed new or modified wireless communication facilities, as follows:

A.    New Facilities. All permit applications received after the effective date of the ordinance codified in this chapter must comply with this chapter.

B.    Changes to Existing Facilities. All permit applications which in any manner whatsoever seek approval to modify a previously approved facility received after the effective date of the ordinance codified in this chapter must comply with this chapter.

C.    Exemptions. This section shall not apply to:

1.    City-owned municipal wireless communications facilities.

2.    Amateur radio facilities that are under seventy feet in height and are owned and operated by a federally licensed amateur radio station operator or are used exclusively for receive-only antennas.

3.    Over-the-air receiving devices, as defined by the FCC at 47 CFR Section 1.4000, with a maximum diameter of one meter (thirty-nine inches) for residential installations, and two meters (seventy-eight inches) for nonresidential installations, and designed, installed, and maintained in compliance with the FCC and the California Public Utilities Commission (hereinafter referred to as the "CPUC") regulations. (Ord. 921 §2(part), 2019)

17.41.040 Application procedures in general.

This chapter applies to all proposed new or modified wireless communication facilities, as follows:

A.    New Facilities. All applications for approval of the installation of new wireless communication facilities in the city must be approved by a wireless facility permit by the planning commission at a public hearing in compliance with this chapter and upon recommendation from the director. No new wireless communication facility shall be installed until the applicant or operator has obtained: (1) a wireless facility permit in compliance with this chapter; (2) an encroachment permit from the public works department (if applicable); and (3) any other permit required by applicable provisions of this code.

B.    Changes to Existing Facilities. All permit applications which in any manner whatsoever seek approval to modify a previously approved facility received after the effective date of the ordinance codified in this chapter must be approved by a wireless facility permit by the planning commission at a public hearing for substantial modifications, or the director for minor modifications, in compliance with this chapter. All modifications to an existing personal wireless communications facility shall be subject to the approval of: (1) a wireless facility permit; in addition to (2) an encroachment permit from the public works department (if applicable); and (3) any other permit required by applicable provisions of this code.

C.    All wireless communication facilities for which applications were received by the city but not approved prior to the effective date of the ordinance codified in this chapter shall comply with the regulations and guidelines of this chapter.

D.    Exemptions. This chapter shall not apply to any city-owned municipal wireless communications facilities. (Ord. 921 §2(part), 2019)

17.41.050 Wireless facility permit application content.

A.    Applications for the approval of wireless facility permits for wireless communication facilities shall include, but are not necessarily limited to, an application fee and the following information:

1.    A clear and complete written analysis that explains how the proposed design complies with the applicable design standards under this chapter to the maximum extent feasible. A complete design justification must identify all applicable standards under this chapter and provide a factually detailed reason why the proposed design either complies or the requirement is preempted by applicable state or federal law; and

2.    Scaled visual simulations showing the proposed facility superimposed on photographs of the site and surroundings, to assist the commission in assessing the visual impacts of the proposed facility and its compliance with the provisions of this chapter; and

3.    For new facilities, the plans shall include (in plan view and elevations) a scaled depiction of the maximum permitted increase as authorized by Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. Section 1455 using the proposed project as a baseline; and

4.    A siting analysis which identifies a minimum of two other feasible locations within or without the city which could serve the area intended to be served by the facility, unless the applicant provides compelling technical reasons for providing fewer than the minimum. The alternative site analysis shall include at least one collocation site; and

5.    An affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, in that it will not cause members of the general public to be exposed to RF levels that exceed the levels deemed safe by the FCC; and

6.    A statement signed by a person with legal authority to bind the applicant attesting under penalty of perjury to the accuracy of the information provided in the application; and

7.    A noise study, prepared by a qualified engineer, for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators; and

8.    A written statement of the applicant’s willingness to allow other carriers to collocate on the proposed wireless communication facility wherever technically and economically feasible and aesthetically desirable; and

9.    Such other information as the director shall establish from time to time pursuant to the Permit Streamlining Act, Government Code Section 65940, or to respond to changes in law or technology.

B.    An application for a wireless communication facility in a public right-of-way for which the applicant claims entitlement under Public Utilities Code Section 7901 shall be accompanied by evidence satisfactory to the director that the applicant is a telephone corporation or has written authorization to act as an agent for a telephone corporation.

C.    Applications for the approval of wireless communication facilities within the public right-of-way shall include certification that the facility is for the use of a telephone corporation or state the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the CPUC, it shall provide a copy of its CPCN.

D.    Minor Modification Application Content. All applications for a wireless facility permit for a proposed minor modification to an existing wireless facility which the applicant contends is subject to 47 U.S.C. Section 1455 must include the following items:

1.    Application Form. The city’s standard application form, available on the city’s website or from the planning department, as may be amended.

2.    Application Fee. An application fee as established by the city council by resolution.

3.    Independent Consultant Deposit. An independent consultant fee deposit, if required by the city council by resolution, to reimburse the city for its costs to retain an independent consultant to review the technical aspects of the application.

4.    Site and Construction Plans. Complete and accurate plans, drawn to scale, signed, and sealed by a California-licensed engineer, land surveyor, and/or architect, which include the following items:

a.    A site plan and elevation drawings for the facility as existing and as proposed with all height and width measurements explicitly stated.

b.    A depiction, with height and width measurements explicitly stated, of all existing and proposed transmission equipment.

c.    A depiction of all existing and proposed utility runs and points of contact.

d.    A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plan view.

e.    For proposed collocations or modifications to wireless towers, the plans must include scaled plan views and all four elevations that depict the physical dimensions of the wireless tower as it existed on February 22, 2012, or as approved if constructed after February 22, 2012. For proposed collocations or modifications to base stations, the plans must include scaled plan views and all four elevations that depict the physical dimensions of the base station as it existed on February 22, 2012, or as approved if constructed after February 22, 2012.

f.    A demolition plan.

5.    Visual Simulations. A visual analysis that includes: (a) scaled visual simulations that show unobstructed before-and-after construction daytime and clear-weather views from at least four angles, together with a map that shows the location of each view angle; (b) a color and finished material palette for proposed screening materials; and (c) a photograph of a completed facility of the same design and in roughly the same setting as the proposed wireless communication facility.

6.    Statement Asserting That Section 6409 Applies. A written statement asserting that the proposed collocation or modification is an "eligible facilities request" and does not result in a substantial change in the physical dimensions of the facility’s wireless tower or base station, as defined by Section 6409, 47 U.S.C. Section 1455, and justifying that assertion. The written statement shall identify and discuss each required finding for approval of a wireless facility minor modification permit and explain the facts that justify the request for the director to make each finding.

7.    Prior Permits. True and correct copies of all previously issued permits, including all required conditions of approval and a certification by the applicant that the proposal will not violate any previous permit or conditions of approval or why any violated permit or conditions do not prevent approval under 47 U.S.C. Section 1455 and the FCC’s regulations implementing this federal law.

8.    Affirmation of Radio Frequency Standards Compliance. An affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the levels deemed safe by the FCC.

9.    Structural Analysis. A structural analysis, prepared, signed, and sealed by a California-licensed engineer, that assesses whether the proposed wireless communications facility complies with all applicable building codes.

10.    Noise Study. A noise study, prepared, signed, and sealed by a California-licensed engineer, for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators; or a written statement signed and sealed by a California-licensed engineer indicating that the proposed modification(s) will not alter the existing noise levels or operational equipment which creates noise.

11.    Other Permits. An application for a wireless facility minor modification permit shall include all permit applications with all required application materials for each and every separate permit required by the city for the proposed collocation or modification to an existing personal wireless communications facility, including a building permit, an encroachment permit (if applicable), and an electrical permit (if applicable).

12.    Other Information. Such other information as the city may require, as specified in publicly available materials, including information required as stated on the city’s website. (Ord. 921 §2(part), 2019)

17.41.060 Required findings of approval for wireless permits.

A.    Wireless Facility Permit Findings for New or Substantially Modified Wireless Facility Permits. No wireless facility permit for a proposed new or substantial modification to a wireless communication facility may be approved unless the planning commission finds, at a public hearing for which notice was provided under the standards set forth in Government Code Sections 65090 and 65091, as follows:

1.    The applicant has demonstrated by clear and convincing evidence that the new or substantially modified wireless facility is necessary to close a significant gap in the applicant’s wireless service coverage. Such evidence shall include in-kind call testing of existing facilities within the area the applicant contends is a significant gap in coverage to be served by the facility.

2.    The applicant has demonstrated by clear and convincing evidence that no feasible alternate site exists that would close a significant gap in the operator’s wireless service coverage which alternative site is a more appropriate location for the facility under the standards of this section.

3.    The proposed new or substantially modified wireless facility complies with all design standards and other requirements of this section, including the requirement that new or substantially modified facilities be camouflaged.

4.    The proposed new or substantially modified wireless facility is consistent with the general plan and any other applicable provisions of this code.

5.    Public notice of the proposed facility was provided under the standards set forth in Government Code Sections 65090 and 65091.

B.    Additional Findings for New or Substantially Modified Wireless Facility Permits in the Public Rights-of-Way. In addition to the findings required in subsection (A)(1) of this section, no proposed new or substantially modified wireless communication facility within a public right-of-way may be approved unless the following findings are made by the planning commission:

1.    The proposed facility has been designed to blend with the surrounding environment, with minimal visual impact on the public right-of-way.

2.    The proposed facility will not have an adverse impact on the use of the public right-of-way, including, but not limited to, the safe movement and visibility of vehicles and pedestrians.

C.    Application Review Periods. Under federal and state law, the city must act on an application for a wireless facility permit for new facilities within one hundred fifty days, and must act on an application for a wireless facility permit for substantial modifications to existing facilities which the applicant does not contend are protected by 47 U.S.C. Section 1455, within ninety days, after the applicant submits the application for a wireless facility permit, unless tolled due to issuance of any notice of incomplete filing or by mutual agreement between the city and the applicant. Under federal and state law, failure to act on a wireless facility permit application within these timelines, excluding tolling periods, may result in the permit being deemed granted by operation of law. In that case, the applicant must still comply with the standard conditions of approval in this section.

D.    Findings Required for Approval of Minor Modifications to Existing Wireless Facilities. An applicant seeking approval of a collocation or modification to an existing wireless communication facility which the applicant contends is within the protection of 47 U.S.C. Section 1455, and qualifies as a minor or not substantial modification, must apply for and receive approval of a wireless facility permit for a minor modification in compliance with this section. This subsection is intended to comply with the city’s obligations under federal law, which provides that the city "may not deny, and shall approve any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." (47 U.S.C. Section 1455(a)(1), adopted as Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L No. 112-96, 126 Stat. 156.) This subsection sets forth standards for the city to review an application for a wireless facility minor modification permit submitted by an applicant who asserts that a proposed collocation or modification to an existing personal wireless communications facility is covered by this federal law. The city’s review of these applications is structured to comply with the requirements of 47 U.S.C. Section 1455 and the FCC’s regulations implementing this federal law, adopted on December 17, 2014, and codified at 47 CFR Section 1.40001 et seq. This subsection is intended to promote the public’s health, safety, and welfare, and shall be interpreted consistent with the Federal Communications Act of 1996 (Pub. L. No. 104-104, 110 Stat. 56), 47 U.S.C. Section 1455, and applicable FCC regulations and court decisions considering these laws and regulations. Under federal law, the city must approve or deny an application for a wireless facility permit for a minor modification, together with any other city permits required for a proposed wireless facility minor modification, within sixty days after the applicant submits the application for a wireless facility permit which the applicant contends is protected by 47 U.S.C. Section 1455, unless tolled due to issuance of any notice of incomplete filing or by mutual agreement between the city and the applicant. Under federal law, failure to act on a wireless facility permit application for a minor modification within the sixty-day review period, excluding tolling period, may result in the permit being deemed granted by operation of law. In that case, the applicant must still comply with the standard conditions of approval in this section.

1.    The director must approve an application for a wireless facility permit for a minor modification that is a collocation or modification to an existing wireless tower on private property which the applicant contends is within the protection of 47 U.S.C. Section 1455 only if each of the following findings can be made:

a.    The applicant proposes a collocation or modification to a structure constructed and maintained with all necessary permits in good standing for the sole or primary purpose of supporting any FCC licensed or authorized antennas and their associated facilities;

b.    The proposed collocation or modification does not increase the height of the existing wireless communication facility above its lowest height on February 22, 2012, or as approved if constructed after February 22, 2012, by more than ten percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater;

c.    The proposed collocation or modification does not increase the width of the facility by more than twenty feet or the width of the tower at the level of the appurtenance, whichever is greater;

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

e.    The proposed collocation or modification does not involve any excavation outside the lease or license area of the facility, including any access or utility easements;

f.    The proposed collocation or modification does not defeat any existing concealment, stealth, or camouflage elements of the support structure; and

g.    The proposed collocation or modification does not violate any prior conditions of approval, except as may be preempted by Section 6409, 47 U.S.C. Section 1455(a).

2.    The director must approve an application for a wireless facility permit for a minor modification that is a collocation or modification to an existing base station on private property which the applicant contends is within the protection of 47 U.S.C. Section 1455 only if each of the following findings can be made:

a.    The applicant proposes a collocation or modification to a structure constructed and maintained with all necessary permits in good standing, whether built for the sole or primary purpose of supporting any FCC licensed or authorized antennas and their associated facilities or not, that currently supports existing wireless transmission equipment;

b.    The proposed collocation or modification does not increase the height of the existing wireless communication facility above its lowest height on February 22, 2012, or as approved if constructed after February 22, 2012, by more than ten percent or ten feet, whichever is greater;

c.    The proposed collocation or modification does not increase the width of the facility by more than six feet;

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

e.    The proposed collocation or modification does not involve any excavation outside the lease or license area of the facility, including any access and utility easements;

f.    The proposed collocation or modification does not defeat any existing concealment, stealth, or camouflage elements of the support structure; and

g.    The proposed collocation or modification does not violate any prior conditions of approval, except as may be preempted by Section 6409, 47 U.S.C. Section 1455(a).

3.    The director must approve an application for a wireless facility permit for a minor modification that is a collocation or modification to an existing wireless tower or base station in the public right-of-way only which the applicant contends is within the protection of 47 U.S.C. Section 1455 if each of the following findings can be made:

a.    The applicant proposes a collocation or modification to either (i) a structure constructed and maintained with all necessary permits in good standing for the sole or primary purpose of supporting any FCC licensed or authorized antennas and their associated facilities or (ii) a structure constructed and maintained with all necessary permits in good standing, whether built for the sole or primary purpose of supporting any FCC licensed or authorized antennas and their associated facilities or not, that currently supports existing wireless transmission equipment;

b.    The proposed collocation or modification does not increase the height of the existing wireless communication facility above its lowest height on February 22, 2012, or as approved if constructed after February 22, 2012, by more than ten percent or ten feet, whichever is greater;

c.    The proposed collocation or modification does not increase the width of the facility by more than six feet;

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

e.    The proposed collocation or modification does not involve either (i) the installation of any new equipment cabinets on the ground, if none already exist, or (ii) the installation of ground equipment cabinets that are more than ten percent larger in height or overall volume than any existing ground cabinets;

f.    The proposed collocation or modification does not involve any excavation outside the area in proximity to the existing ground-mounted equipment in the public right-of-way;

g.    The proposed collocation or modification does not defeat any existing concealment, stealth, or camouflage elements of the existing structure; and

h.    The proposed collocation or modification does not violate any prior conditions of approval, except as may be preempted by Section 6409, 47 U.S.C. Section 1455(a). (Ord. 921 §2(part), 2019)

17.41.070 Standards for wireless facilities.

A.    All new wireless facilities shall be concealed. The installation of an uncamouflaged wireless facility is prohibited. All new facilities and substantial changes to existing facilities shall include appropriate stealth and concealment techniques given the proposed location, design, visual environment, and nearby uses and structures. Stealth and concealment techniques do not include incorporating faux-tree designs of a kind substantially different than the surrounding live trees. All new architectural features proposed to conceal transmission equipment shall be designed to mimic the existing underlying structure, shall be proportional to the existing underlying structure, and shall use materials in similar quality, finish, color, and texture as the existing underlying structure.

B.    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.

C.    All wireless facility antennas, mounting hardware, and cabling shall be covered or painted to match the color and texture of the building, tower, or pole on which it is mounted. Equipment cabinets, service panels, and service connections shall be screened by solid walls, landscaping, or berms. Screening shall blend with or enhance the surrounding context in terms of scale, form, texture, materials, and color. Any wireless facility shall be concealed as much as possible by blending into the natural and physical environment. All gates shall be opaque.

D.    Wireless facilities should be collocated with existing wireless facilities, if within one thousand five hundred feet of an existing visible wireless facility, unless the city determines that the particular design proposed would not create excessive visual clutter or would otherwise create harms the city cannot ameliorate.

E.    A wireless facility located in the public rights-of-way:

1.    Shall, with respect to its pole-mounted components, be located in a concealed manner on an existing or replaced utility pole; or

2.    Shall be located in a concealed wireless facility consistent with other existing natural or manmade features in the rights-of-way near the location where the wireless facility is to be located; or

3.    Shall, with respect to its pole-mounted components, be located in a concealed wireless facility on a new utility pole, if there are no reasonable alternatives, and the applicant is authorized to construct new utility poles.

F.    The ground-mounted components of a wireless facility shall, whether in or outside of the rights-of-way:

1.    To the extent the structures are utility boxes within the meaning of this code, be reviewed and subject to the same approvals as utility boxes installed by other communications companies; and

2.    Shall be located flush to grade where necessary to avoid incommoding the public or creating a hazard; and

3.    To the extent permitted above ground, shall otherwise be appropriately screened, landscaped and camouflaged to blend in with the surroundings, and nonreflective paints shall be used. All ground-mounted outdoor transmission equipment and associated enclosures or shelters shall be screened. All wires, cables, and any other connections shall be completely concealed from public view to the maximum extent feasible.

G.    Unless it is determined by the city that there is no less intrusive alternative available to close a significant gap in the service provided by a wireless facility, or it is determined that the city is legally required to approve an application, the director may not approve an application for a wireless facility where the application proposes a design that would require extensions from any support structure inconsistent in size with the extensions otherwise permitted under the code.

H.    A wireless facility and all subsequent modifications shall be designed and located to minimize the impact on the surrounding neighborhood, and to maintain the character and appearance of the city, consistent with other provisions of the code. To that end, wireless facilities should:

1.    Employ the least intrusive design for the proposed location in terms of size, mass, visual and physical impact, and effects on properties from which the wireless facility is visible; and

2.    Accommodate collocation consistent with the other design requirements of this section; and

3.    Be consistent with the general plan.

I.    Without limiting the foregoing, all portions of a wireless facility affixed to a support structure shall be designed to blend in or be screened from view in a manner consistent with the support structure’s architectural style, color and materials when viewed from any part of the city. Wireless facilities shall be covered, painted and textured or otherwise camouflaged to match the color and texture of the support structure on which they are mounted. Where the support structure is a building, the wireless facility, including without limitation base station cabinets, remote transmitters and receivers, and antenna amplifiers, shall be placed within the building or mounted behind a parapet screened from public view unless that is not feasible. If the director determines that such in-building placement is not feasible, the equipment shall be roof-mounted in an enclosure or otherwise screened from public view as approved by the community development director.

J.    Wireless facilities shall not be lighted except with the authorization of the director. The director may permit lighting at the lowest intensity necessary:

1.    For proximity-triggered or timer-controlled security lighting; or

2.    To comply with regulations for the illumination of any flag attached to a wireless facility; or

3.    Where such lighting is required by the director to protect public health or welfare, or as part of the camouflage for a particular design which includes street or decorative lighting as integral to the design and as approved by the director.

K.    No facilities may bear any signage or advertisement(s) other than signage required by law or expressly permitted or required by the city. No advertising signage shall be displayed on any wireless facility except for government-required signs shown in the wireless facility permit application. Additionally site identification, address, warning and similar information plates may be permitted where approved by the director.

L.    The wireless facility shall not incommode the public (including, without limitation, persons with disabilities) in its use of any structure, or any portion of the rights-of-way.

M.    All new facilities and substantial changes to existing facilities shall comply with the applicable height limit for the facility’s zone.

N.    At no time shall transmission equipment or any other associated equipment (including but not limited to heating and air conditioning units) at any wireless communication facility emit noise that exceeds the applicable limit(s) established in this code.

O.    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.

P.    All wireless towers shall be designed and situated in a manner that utilizes existing natural or manmade features (including but not limited to topography, vegetation, buildings, or other structures) to visually conceal the wireless tower to the maximum extent feasible.

Q.    All accessory equipment associated with the operation of a wireless communication facility shall be located within a building enclosure or underground vault that complies with the development standards of the zoning district in which the accessory equipment is located.

R.    Ground-mounted equipment shall be located so as not to cause: (1) any physical or visual obstruction to pedestrian or vehicular traffic; (2) inconvenience to the public’s use of a public right-of-way; or (3) safety hazards to pedestrians and motorists. In no case shall ground-mounted equipment, walls, or landscaping be less than eighteen inches from the front of the curb.

S.    No facility shall be built so as to cause the right-of-way in which the facility is located to fail to comply with the Americans with Disabilities Act. (Ord. 921 §2(part), 2019)

17.41.080 Standard conditions of approval.

All facilities subject to a wireless facility permit approved under this chapter, including any facilities for which a wireless facility permit is deemed approved by operation of law, shall be subject to the following conditions:

A.    Facilities shall not bear any signs or advertising devices other than legally required certification, warning, or other required seals or signage, or as expressly authorized by the city.

B.    Abandonment.

1.    Wireless communication facilities that are no longer operating shall be removed at the expense of the applicant, operator, or owner no later than ninety days after the discontinuation of use. Disuse for ninety days or more shall also constitute a voluntary termination by the applicant of any land use entitlement under this code or any predecessor to this code.

2.    The director shall send a written notice of the determination of nonoperation to the owner and operator of the wireless communication facility, who shall be entitled to a hearing on that determination before the city manager or a hearing officer appointed by the city manager; provided, that written request for such a hearing is received by the city clerk within ten days of the date of the notice. No further appeal from the decision of the city manager may be had other than pursuant to Code of Civil Procedure Section 1094.5. Upon a final decision of the city manager or the running of the time for a request for a hearing without such a request, the operator shall have ninety days to remove the facility.

3.    The operator of a facility shall notify the city in writing of its intent to abandon a permitted site. Removal shall comply with applicable health and safety regulations. Upon completion of abandonment, the site shall be restored to its original condition at the expense of the applicant, operator, or owner.

4.    All facilities not removed within the required ninety-day period shall be in violation of this code. In the event the city removes a disused facility upon the failure of the applicant, operator, or owner to timely do so, the applicant, operator, and owner shall be jointly and severally liable for the payment of all costs and expenses the city incurs for the removal of the facilities, including legal fees and costs.

C.    The applicant, operator of a facility and property owner (when applicable) shall defend, indemnify and hold the city and its elective and appointed boards, commissions, officers, agents, consultants and employees harmless from and against all demands, liabilities, costs (including attorneys’ fees), or damages arising from the city’s review and approval of the design, construction, operation, location, inspection or maintenance of the facility.

D.    Removal of Unsafe Facilities. If, at any time after ten years of the issuance of a building permit or encroachment permit, or any shorter period permitted by Government Code Section 65964(b), any wireless communication facility becomes incompatible with public health, safety or welfare, the applicant or operator of the facility shall, upon notice from the city and at the applicant’s or operator’s own expense, remove that facility. Written notice of a determination pursuant to this subsection shall be sent to the owner and operator of the wireless communication facility, who shall be entitled to a hearing on that determination before the city manager or a hearing officer appointed by the city manager; provided, that written request for such a hearing is received by the city clerk within ten days of the date of the notice. No further appeal from the decision of the city manager may be had other than pursuant to Code of Civil Procedure Section 1094.5. Upon a final decision of the city manager or the running of the time for a request for a hearing without such a request, the operator shall have ninety days to remove the facility.

E.    Prior to the issuance of a building permit or encroachment permit, the applicant or owner/operator of the facility shall pay for and provide a performance bond, which shall be in effect until all facilities are fully and completely removed and the site reasonably returned to its original condition. The purpose of this bond is to cover the applicant’s or owner’s/operator’s of the facility obligation under the conditions of approval and the city code. The bond coverage shall include, but not be limited to, removal of the facility, maintenance obligations and landscaping obligations. The amount of the performance bond shall be set by the director on a case-specific basis and in an amount reasonably related to the obligations required under this code and all conditions of approval, and shall be specified in the conditions of approval.

F.    An applicant shall not transfer a permit to any person or entity prior to completion of construction of a wireless communication facility.

G.    The applicant shall submit as-built photographs of the facility within ninety days of installation of the facility, detailing the installed equipment.

H.    A wireless communication facility approved by a wireless facility permit may operate only until the tenth anniversary of the date it is first placed into service, unless that sunset date is extended by additional term(s) not to exceed ten years pursuant to a wireless facility permit issued. There is no limit to the number of times the sunset date for a facility may be extended.

I.    Any approved wireless communication facility within a public right-of-way shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the public works director to: (1) protect the public health, safety, and welfare; (2) prevent interference with pedestrian and vehicular traffic; or (3) prevent damage to a public right-of-way or any property adjacent to it. Before the director of public works imposes conditions, changes, or limitations pursuant to this subsection, he or she shall notify the applicant or operator, in writing, by mail to the address set forth in the application or such other address as may be on file with the city. Such change, new limitation or condition shall be effective twenty-four hours after deposit of the notice in the United States mail.

J.    The applicant or operator of a wireless communication facility in the public rights-of-way shall not move, alter, temporarily relocate, change, or interfere with any existing public facility, structure or improvement without the prior written consent of the city, and the owner in the circumstance where the owner is not the city. No structure, improvement or facility owned by the city shall be moved to accommodate a wireless communication facility unless: (1) the city determines, in its sole and absolute discretion, that such movement will not adversely affect the city or surrounding residents or businesses; and (2) the applicant or operator pays all costs and expenses related to the relocation of the city’s facilities. Every applicant or operator of any wireless communication facility shall assume full liability for damage or injury caused to any property or person by his, her, or its facility. Before commencement of any work pursuant to an encroachment permit issued for any wireless communication facility within a public right-of-way, an applicant shall provide the city with documentation establishing to the city’s satisfaction that the applicant has the legal right to use or interfere with any other facilities within the public right-of-way to be affected by applicant’s facilities.

K.    In addition to any other conditions of approval permitted under federal and state law and this code that the director deems appropriate or required under this code, all wireless facility permits for minor modifications subject to 47 U.S.C. Section 1455, including any minor modifications for which a wireless facility permit is deemed approved by operation of law, shall include the following conditions of approval:

1.    No Automatic Renewal. The grant or approval of a wireless facility minor modification permit shall not renew or extend the underlying permit term.

2.    Compliance with Previous Approvals. The grant or approval of a wireless facility minor modification permit shall be subject to the conditions of approval of the underlying permit, except as may be preempted by Section 6409(a) of the Middle Class Tax Relief and Job Creation Act, 47 U.S.C. Section 1455.

3.    As-Built Plans. The applicant shall submit to the director an as-built set of plans and photographs depicting the entire personal wireless communications facility as modified, including all transmission equipment and all utilities, within ninety days after the completion of construction.

4.    Indemnification. To the fullest extent permitted by law, the applicant and any successors and assigns shall defend, indemnify and hold harmless city, its employees, agents and officials, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but not limited to, actual attorney fees, litigation expenses and court costs of any kind without restriction or limitation, incurred in relation to, as a consequence of, arising out of or in any way attributable to, actually, allegedly or impliedly, in whole or in part, related to the wireless facility minor modification permit and the issuance of any permit or entitlement in connection therewith. The applicant shall pay such obligations as they are incurred by city, its employees, agents and officials, and in the event of any claim or lawsuit, shall submit a deposit in such amount as the city reasonably determines necessary to protect the city from exposure to fees, costs or liability with respect to such claim or lawsuit.

5.    Compliance with Applicable Laws. The applicant shall comply with all applicable provisions of this code, any permit issued under this code, and all other applicable federal, state, and local laws. Any failure by the city to enforce compliance with any applicable laws shall not relieve any applicant of its obligations under this code, any permit issued under this code, or all other applicable laws and regulations.

6.    Compliance with Approved Plans. The proposed project shall be built in compliance with the approved plans on file with the planning department.

7.    Violations. The facility shall be developed, maintained, and operated in full compliance with the conditions of the wireless facility minor modification permit, any other applicable permit, and any law, statute, ordinance or other regulation applicable to any development or activity on the site. Failure of the applicant to cease any development or activity not in full compliance shall be a violation of these conditions. Any violation of this code, the conditions of approval for the wireless facility minor modification permit, or any other law, statute, ordinance or other regulation applicable to any development or activity on the site may result in the revocation of this permit. The remedies specified in this chapter shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation.

8.    In the event that a court of competent jurisdiction invalidates or limits, in part or in whole, 47 U.S.C. Section 1455, such that such statute would not mandate approval for the collocation or modification granted or deemed granted under a wireless facility minor modification permit, such permit shall automatically expire twelve months from the date of that opinion.

9.    The grant, deemed-grant or acceptance of wireless facility minor modification permit shall not waive and shall not be construed or deemed to waive the city’s standing in a court of competent jurisdiction to challenge 47 U.S.C. Section 1455 or any wireless facility minor modification permit issued pursuant to 47 U.S.C. Section 1455 or this code.

L.    Annual Monitoring Fee. The owner or operator of a facility subject to a permit under this chapter shall pay to the city an annual monitoring fee as established in the city’s master fee schedule. The fee shall be used to recover the city’s costs to inspect, review, and monitor compliance with the conditions of the permit. (Ord. 921 §2(part), 2019)

17.41.090 Provisions applicable to small wireless facilities.

Unless modified by this section, all provisions of this chapter shall apply to small wireless facilities.

A.    Requirements for Small Wireless Facilities Permits. This section governs applications for small wireless facilities permits.

1.    Purpose. This section is intended to comply with the city’s obligations under 47 CFR Section 1.6001 et seq., which implements 47 U.S.C. Sections 332(c)(7) and 1455. This section creates a process for the city to review an application for a small wireless facility permit submitted by an applicant who asserts that a proposed collocation of a small wireless facility using an existing structure or the deployment of a small wireless facility using a new structure, and the modifications of such small wireless facilities, is covered by federal law and to determine whether the city must approve the proposed collocation or deployment.

2.    Applicability. An applicant seeking approval of a collocation to a structure or a deployment to a new structure which the applicant contends is within the protection of 47 U.S.C. Section 1455 shall apply for the following at the same time: (a) a small wireless facility permit; (b) an encroachment permit from the public works department (if required by applicable provisions of this code); and (c) any other permit required by applicable provisions of this code including a building permit, an electrical permit, or a tree report under Chapter 17.21.

3.    Application Content. All applications for a small wireless facility permit must include the following items:

a.    Application Form. The city’s standard application form, available on the city’s website or from the planning and building department, as may be amended.

b.    Application Fee. An application fee as established by the city council by resolution.

c.    Independent Consultant Deposit. An independent consultant fee deposit, if required by the city council by resolution, to reimburse the city for its costs to retain an independent consultant to review the technical aspects of the application.

d.    Site and Construction Plans. Complete and accurate plans, drawn to scale, signed, and sealed by a California-licensed engineer, land surveyor, and/or architect, which include the following items:

i.    A site plan and elevation drawings for the facility as existing and as proposed with all height and width measurements explicitly stated.

ii.    A depiction, with height and width measurements explicitly stated, of all existing and proposed transmission equipment.

iii.    A depiction of all existing and proposed utility runs and points of contact.

iv.    A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plan view.

v.    For proposed collocation or deployment to wireless towers, the plans must include scaled plan views and all four elevations that depict the physical dimensions of the wireless tower as it existed on the plans for the original tower.

vi.    A demolition plan.

e.    Visual Simulations. A visual analysis that includes: (i) scaled visual simulations that show unobstructed before-and-after construction daytime and clear-weather views from at least four angles, together with a map that shows the location of each view angle; (ii) a color and finished material palate for proposed screening materials; and (iii) a photograph of a completed facility of the same design and in roughly the same setting as the proposed wireless communication facility.

f.    Statement Asserting That 47 CFR Section 1.6001 et seq. Applies. A written statement asserting that the proposed collocation or deployment is subject to 47 CFR Section 1.6001 et seq.

g.    Prior Permits. True and correct copies of all previously issued permits, including all required conditions of approval and a certification by the applicant that the proposal will not violate any previous permit or conditions of approval or why any violated permit or conditions do not prevent approval under 47 U.S.C. Section 1455 and the FCC’s regulation implementing this federal law.

h.    Affirmation of Radio Frequency Standards Compliance. An affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the MPE levels deemed safe by the FCC. A copy of the fully completed FCC form "A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance: Appendix A" titled "Optional Checklist for Determination of Whether a Facility is Categorically Excluded" for each frequency band of RF emissions to be transmitted from the proposed facility upon the approval of the application. All planned radio frequency emissions on all frequency bands must be shown on the Appendix A form(s) attached to the application. All planned radio frequency emissions are to be entered on each Appendix A form only in wattage units of "effective radiated power."

i.    Structural Analysis. A structural analysis, prepared, signed, and sealed by a California-licensed engineer, for the proposed small wireless facility including, but not limited to, equipment, such as air conditioning units and back-up generators; or a written statement signed and sealed by a California-licensed engineer indicating that the proposed facility will not alter the existing noise levels or operational equipment which creates noise.

j.    Other Permits. An application for a small wireless facility permit shall include all permit applications with all required application materials for each and every separate permit required by the city for the proposed collocation or deployment, including a building permit, an encroachment permit (if applicable) and an electrical permit (if applicable).

4.    Application Review. Each application for a new or modified small wireless facility permit shall be reviewed by the director. The city must approve or deny an application for a small wireless facility permit, together with any other city permits required for a proposed small wireless facility, within sixty days after the applicant submits an application to collocate a small wireless facility using an existing structure, and within ninety days after the applicant submits an application to deploy a small wireless facility using a new structure. The director shall provide written notice to all property owners within five hundred feet of the site of a proposed small wireless facility upon approval of an application for a small wireless facility permit.

5.    Tolling Period. Unless a written agreement between the applicant and the city provides otherwise, the application is tolled when the city notifies the applicant within ten days of the applicant’s submission of the application that the application is materially incomplete and identifies the missing documents or information. The shot clock may again be tolled if the city provides notice within ten days of the application’s resubmittal that it is materially incomplete and identifies the missing documents or information. For an application to deploy small wireless facilities, if the city notifies the applicant on or before the tenth day after submission that the application is materially incomplete, and identifies the missing documents or information and the rule or regulation creating the obligation to submit such documents or information, the shot clock date calculation will restart at zero on the date the applicant submits a completed application.

6.    Standards Governing Approval by Director.

a.    The director shall approve or deny an application to collocate a small wireless facility using an existing structure by evaluating the following standards:

i.    The existing structure was constructed and maintained with all necessary permits in good standing.

ii.    The existing structure is fifty feet or less in height, including any antennas, or the existing structure is no more than ten percent taller than other adjacent structures.

iii.    Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume.

iv.    All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment serving the facility, is no more than twenty-eight cubic feet in volume.

v.    The small wireless facilities do not extend the existing structure on which they are located to a height of more than fifty feet or by more than ten percent, whichever is greater.

vi.    The small wireless facility does not require an antenna structure registration under Part 47 CFR Section 17.1 et seq.

vii.    The small wireless facility is not located on tribal lands, as defined under 36 CFR Section 800.16(x).

viii.    For collocations not located within the public right-of-way, the proposed collocation shall be consistent with the standards of Sections 17.41.070 and 17.41.080.

ix.    For collocations located within the public right-of-way, the proposed collocation shall be consistent with the standards of Sections 17.41.070 and 17.41.080, except that Sections 17.41.070(D) and 17.41.080(I) and (J) do not apply.

x.    The proposed collocation would be in the most preferred location and configuration within two hundred fifty feet from the proposed site in any direction or the applicant has demonstrated with clear and convincing evidence in the written record that any more-preferred location or configuration within two hundred fifty feet would be technically infeasible, applying the preference standards of this section.

xi.    The proposed collocation is designed as a stealth facility, to the maximum feasible extent.

b.    The director must approve an application to deploy a small wireless facility using a new structure only if each of the following findings can be made:

i.    The new structure was constructed and maintained with all necessary permits in good standing;

ii.    The new structure is fifty feet or less in height, including any antennas, or the new structure is no more than ten percent taller than other adjacent structures;

iii.    Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume;

iv.    All other wireless equipment associated with the facility, including the wireless equipment associated with the antenna and any preexisting equipment associated with the facility, is no more than twenty-eight cubic feet in volume;

v.    The small wireless facility does not require an antenna structure registration under Part 47 CFR Section 17.1 et seq.;

vi.    The small wireless facility is not located on tribal lands, as defined under 36 CFR Section 800.16(x);

vii.    For new structures not located within the public right-of-way, the proposed facility shall be consistent with the standards of Sections 17.41.070 and 17.41.080;

viii.    For new structures located within the public right-of-way, the proposed facility shall be consistent with Sections 17.41.070 and 17.41.080, except that Sections 17.41.070(D) and 17.41.080(I) and (J) do not apply;

ix.    The proposed project would be in the most preferred location and configuration within two hundred fifty feet from the proposed site in any direction or the applicant has demonstrated with clear and convincing evidence in the written record that any more-preferred location or configuration within two hundred fifty feet would be technically infeasible, applying the preference standards of this section;

x.    The proposed project is designed as a stealth facility, to the maximum feasible extent.

c.    Small Cell Location and Configuration Preferences. The city prefers that small wireless facilities in the public right-of-way or in the equivalent right-of-way on homeowners’ association owned lands and private streets be configured on the following support structures, in order of preference from most to least preferred: (i) existing or replacement street light standard; (ii) existing or replacement concrete or steel utility pole; (iii) existing or replacement wood utility pole; (iv) new street light standard; (v) new utility pole. The city prefers that small wireless facilities outside the public right-of-way be configured on the following support structures, in order of preference from most to least preferred: (i) on existing, approved wireless facility support structures operating in compliance with this code; (ii) on existing buildings or nontower structures; (iii) on existing or replacement utility poles or towers; (iv) in new towers meeting the height requirements of the applicable FCC regulations.

7.    Conditions of Approval for Small Wireless Facility Permits. In addition to any other conditions of approval permitted under federal and state law and this code that the director deems appropriate or required under this code, all small wireless facility permits under this section shall include the following conditions of approval:

a.    No Automatic Renewal. The grant or approval of a small wireless facility permit shall not renew or extend the underlying permit term.

b.    Compliance with Previous Approvals. The grant or approval of a small wireless facility permit shall be subject to the conditions of approval of the underlying permit.

c.    As-Built Plans. The applicant shall submit to the director an as-built set of plans and photographs depicting the entire small wireless facility as modified, including all transmission equipment and all utilities, within ninety days after the completion of construction.

d.    Indemnification. To the fullest extent permitted by law, the applicant and any successors and assigns shall defend, indemnify and hold harmless the city, its employees, agents and officials from and against any liability, claims, suits, actions, arbitration proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but not limited to, actual attorney fees, litigation expenses and court costs of any kind without restriction or limitation, incurred in relation to, as a consequence of, arising out of or in any way attributable to, actually, allegedly or impliedly, in whole or in part, related to the wireless facility minor modification permit and the issuance of any permit or entitlement in connection therewith. The applicant shall pay such obligations as they are incurred by the city, its employees, agents and officials, and in the event of any claim or lawsuit, shall submit a deposit in such amount as the city reasonably determines necessary to protect the city from exposure to fees, costs or liability with respect to such claim or lawsuit.

e.    Compliance with Applicable Laws. The applicant shall comply with all applicable provisions of this code, any permit issued under this code, and all other applicable federal, state, and local laws. Any failure by the city to enforce compliance with any applicable laws shall not relieve any applicant of its obligations under this code, any permit issued under this code, or all other applicable laws and regulations.

f.    Compliance with Approved Plans. The proposed project shall be built in compliance with the approved plans on file with the planning and building department.

g.    Violations. The small wireless facility shall be developed, maintained, and operated in full compliance with the conditions of the small wireless facility permit, any other applicable permit, and any law, statute, ordinance or other regulation applicable to any development or activity on the site. Failure of the applicant to cease any development or activity not in full compliance shall be a violation of these conditions. Any violation of this code, the conditions of approval for the wireless facility minor modification permit, or any other law, statute, ordinance or other regulation applicable to any development or activity on the site may result in the revocation of this permit. The remedies specified in this section shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation.

h.    In the event that a court of competent jurisdiction invalidates or limits, in part or in whole, 47 U.S.C. Section 1455, such that such statute would not mandate approval for the collocation or deployment granted or deemed granted under a wireless facility minor modification permit, such permit shall automatically expire twelve months from the date of that opinion.

i.    The grant, deemed-grant or acceptance of a small wireless facility permit shall not waive and shall not be construed or deemed to waive the city’s standing in a court of competent jurisdiction to challenge 47 U.S.C. Section 1455 or any small wireless facility permit issued pursuant to 47 U.S.C. Section 1455 or this code.

8.    Small Wireless Facility Permit Denial without Prejudice.

a.    Grounds for Denial without Prejudice. The director may deny without prejudice an application for a small wireless facility permit in any of the following circumstances:

i.    The director cannot make all findings required for approval of a small wireless facility permit;

ii.    The proposed collocation or deployment would cause the violation of an objective, generally applicable law protecting public health or safety;

iii.    The proposed collocation or deployment involves the removal and replacement of an existing facility’s entire supporting structure; or

iv.    The proposed collocation or deployment does not qualify for mandatory approval under 47 U.S.C. Section 1455, as may be amended or superseded, and as may be interpreted by any order of the FCC or any court of competent jurisdiction.

b.    Procedures for Denial without Prejudice. All small wireless facility permit application denials shall be in writing and shall include: (i) the decision date; (ii) a statement that the city denies the permit without prejudice; (iii) a short and plain statement of the basis for the denial; and (iv) that the applicant may submit the same or substantially the same permit application in the future.

c.    Submittal after Denial without Prejudice. After the director denies a small wireless facility permit application, and subject to the generally applicable permit application submittal provisions in this chapter, an applicant shall be allowed to:

i.    Submit a new small wireless facility permit application for the same or substantially the same proposed collocation or deployment; or

ii.    Submit an appeal of the director’s decision to the city council in accordance with Section 17.41.100.

d.    Costs to Review a Denied Permit. The city shall be entitled to recover the reasonable costs for its review of any small wireless facility permit application. In the event that the director denies a small wireless facility permit application, the city shall return any unused deposit fees within sixty days after a written request from the applicant. An applicant shall not be allowed to submit a small wireless facility permit application for the same or substantially the same proposed modification unless all costs for the previously denied permit application are paid in full.

B.    Nothing in this section shall modify the existing standards for non-small wireless facility applications.

C.    Nothing in this section shall limit the city’s authority to negotiate different standards for small wireless facility applications. (Ord. 921 §2(part), 2019)

17.41.100 Appeals.

A.    Within fifteen calendar days following the date of any decision by the director or planning commission on a wireless facility permit application, any person or entity may appeal the decision to the city council. The city council may call for the review of a decision by the director or planning commission by a majority vote.

B.    Where an appeal is timely filed, the city manager shall prepare a staff report regarding the original decision and shall submit the report to the city council along with the written notice of appeal submitted by the appellant, and shall make the written record available to the city council.

C.    The appeal before the city council shall be a public hearing and shall be appropriately noticed. The appellant shall bear all costs for the appeal.

D.    The city council shall hear the appeal at a regular city council meeting or at a special meeting of the city council called for the purpose of hearing the appeal, after allowing for sufficient time for the city manager to prepare the written report and compile the written record. To prevent applicants from withholding information or otherwise abusing the appeal process, the city council has the discretion but is not required to hear additional evidence, and may decide the matter solely on the record that was before the director or planning commission.

E.    The city council may accept or reject, wholly or in part, or may modify, the decision made by the director or planning commission. If the decision of the city council regarding the wireless facility permit appeal is to deny the wireless facility permit or conditionally approve the wireless facility permit, the city council shall direct the city manager to prepare written findings referencing substantial evidence in the city’s written administrative record and such written findings shall be provided to the city council for adoption. The applicant and any appellant on the application shall receive a copy of the final written decision approved by the city council. (Ord. 921 §2(part), 2019)

17.41.110 Independent consultant review.

A.    Selection by Director. The director may select and retain with the approval of the city manager one or more independent consultants with expertise in communications satisfactory to the director and the city manager 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 director, 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 or fees do not exceed the deposit amount, the city shall refund any unused portion within sixty days after the final building permit is released or, if no final building permit is released, within sixty days after the city receives a written request from the applicant. (Ord. 921 §2(part), 2019)

17.41.120 Maintenance.

A.    All wireless communication facilities must comply with all standards and regulations of the FCC, and any other state or federal government agency with the authority to regulate wireless communication facilities.

B.    The site and the wireless communication facility, including all landscaping, fencing, and related transmission equipment, must be maintained in a neat and clean manner and in accordance with all approved plans.

C.    All graffiti on wireless communication facilities must be removed at the sole expense of the permittee within forty-eight hours of notification.

D.    A wireless communication facility located in the public right-of-way may not unreasonably interfere with the use of any city property or the public right-of-way by the city, by the general public or by other persons authorized to use or be present in or upon the public right-of-way. Unreasonable interference includes disruption to vehicular or pedestrian traffic, and interference with any other city or public utilities.

E.    If any FCC, CPUC or other required license or approval to provide communication services is ever revoked, the permittee must inform the director of the revocation within ten days of receiving notice of such revocation. (Ord. 921 §2(part), 2019)

17.41.130 Removal of abandoned facilities.

A.    Any facility whose permit has expired or whose permit has been terminated by the city or that is not operated for a continuous period of one hundred eighty days shall be deemed abandoned, and the owner of the facility shall remove the facility within ninety days of receipt of notice from the director notifying the owner of the abandonment.

B.    If the facility is not removed within the ninety-day period, the director may remove the facility at the permittee’s, facility owner’s, or landowner’s expense pursuant to the city’s abatement procedures.

C.    If there are two or more users of the permitted facility, this provision shall not become effective until all applicable permits have expired or have terminated or all users cease using the facility.

D.    As a condition of approval for permit issuance, the applicant shall provide a separate demolition bond for the duration of the permit, and in the form and manner of surety as determined by the director and approved as to form by the city attorney, with provision for inspection and city removal of the facility in the event of failure to perform by the responsible parties as defined by this chapter. (Ord. 921 §2(part), 2019)

17.41.140 Ownership transfers.

Upon transfer of an approved wireless communication facility or any rights under the applicable permit or approval, the permittee of the facility must within thirty days of such transfer provide written notification to the director of the date of the transfer and the identity of the transferee. The director 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. (Ord. 921 §2(part), 2019)

17.41.150 Revocation of a wireless facility permit.

A.    A wireless facility permit may be revoked if the permittee is not in compliance with permit conditions, if the permit conditions are not enforceable, or for a failure to comply with any provision of the code relating to the permit, or relating to the wireless facility associated with the permit ("default event"). By way of example and not limitation, a refusal to timely remove facilities located in the rights-of-way where required in connection with a public works project would be a default event.

B.    The city manager may revoke a wireless facility permit only after:

1.    Written notice of the default event has been provided to the wireless facility permit holder.

2.    The wireless facility permit holder has been afforded a reasonable opportunity to cure and comply with its permit, or demonstrate that no default event occurred.

3.    If the wireless facility permit holder fails to cure, the city council, or designee, shall conduct a noticed public hearing where the wireless facility permit holder shall be afforded an opportunity to speak and be heard and to provide written material prior to the hearing. If the city council or its designee, after the public hearing, finds that the wireless facility or the wireless facility permit holder has violated any law regulating the wireless facility or has failed to comply with the requirements of this chapter, the wireless facility permit, any applicable agreement or any condition of approval, the city council may revoke the permit.

4.    Upon revocation, the city council may require the removal of the wireless facility or take any other legally permissible action or combination of actions necessary to protect the health and welfare of the city. (Ord. 921 §2(part), 2019)

17.41.160 Exception from standards.

Notwithstanding the provisions of this chapter, one or more specific exceptions to the standards contained within this chapter may be granted if a denial of an exception would prohibit or have the effect of prohibiting the provision of wireless communications services by the applicant within the meaning of 47 U.S.C. Section 332(c)(7) or if the denial of the exception is otherwise preempted or prohibited by state or federal law or regulations. The city may grant an exception, on such terms as the city may deem appropriate, in cases where the city determines that the grant of an exception is necessary to comply with state and federal law or regulations. Prior to the issuance of an exception, the applicant shall be required to submit to the director a written explanation setting forth clear and convincing evidence that the location or locations and the design of the facility are necessary to close a significant gap in service coverage, that there is no feasible alternate location or locations, or design, that would close this significant gap in coverage or reduce this significant gap in coverage 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 a significant gap in coverage. Exceptions shall be subject to the review and approval by the planning commission at noticed public hearings. The burden is on the applicant to prove significant gaps and least intrusive means as required herein. (Ord. 921 §2(part), 2019)

17.41.170 Violations.

It is unlawful for any person to violate any provision or to fail to comply with any of the requirements of this chapter. Any person, firm, partnership, or corporation violating any provision of this chapter or failing to comply with any of its requirements will be deemed guilty of an infraction and upon conviction thereof will be punished by a fine not exceeding one thousand dollars. Each such person, firm, partnership, or corporation will be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of any of the provisions of this chapter is committed, continued or permitted by such person, firm, partnership, or corporation, and will be deemed punishable therefor as provided in this chapter. The remedies specified in this chapter shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation. (Ord. 921 §2(part), 2019)

17.41.180 Severability.

In the event that a court of competent jurisdiction holds any section, subsection, paragraph, sentence, clause, or phrase in this chapter unconstitutional, preempted, or otherwise invalid, the invalid portion shall be severed from this chapter and shall not affect the validity of the remaining portions of this chapter. The city hereby declares that it would have adopted each section, subsection, paragraph, sentence, clause, or phrase in this chapter irrespective of the fact that any one or more sections, subsections, paragraphs, sentences, clauses, or phrases in this chapter might be declared unconstitutional, preempted, or otherwise invalid. (Ord. 921 §2(part), 2019)