CHAPTER 11.32
SMALL CELL WIRELESS FACILITIES
11.32.050 Small wireless facilities design and development guidelines.
11.32.060 Small wireless facility permit processing guidelines.
11.32.070 Operation, license and maintenance.
11.32.080 No dangerous conditions or obstructions allowed.
11.32.100 Legal nonconforming wireless telecommunications facilities.
11.32.130 Removal and restoration upon permit expiration, revocation or abandonment.
11.32.140 Effect on other ordinances.
11.32.150 State or federal law.
11.32.010 Purpose.
The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation, and maintenance of small cell wireless telecommunications facilities in the city’s public right-of- way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary:
(a) For the preservation of the public right-of-way in the city for the maximum benefit and use of the public;
(b) To promote and protect public health and safety, community welfare, visual resources, and the aesthetic quality of the city consistent with the goals, objectives and policies of the general plan; and
(c) To provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with state and federal laws, rules and regulations. (Ord. 1435 § 2, 2021).
11.32.020 Definitions.
(a) "Permittee" means any person or entity (i.e., applicant) granted a wireless telecommunications facility permit pursuant to this chapter.
(b) Backhaul. Small cell backhaul is the transmission link between the small cell and the mobile network operator’s core network.
(c) "City" means the city of Marysville.
(d) "Code" means the city of Marysville Municipal Code.
(e) "Facility(ies)" means wireless telecommunications facility(ies) or "small cell facilities" as defined below.
(f) "FCC" means the Federal Communications Commission.
(g) "FCC shot clock" means the presumptively reasonable time frame within which the city generally must act on a given application for a small cell facilities permit, as defined by the FCC and as may be amended from time to time.
(h) "Public right-of-way" or "PROW" means a strip of land acquired by reservation, dedication, prescription, condemnation, or easement that allows for the passage of people and goods. The public right-of-way includes, but is not limited to, streets, curbs, gutters, sidewalks, roadway medians, and parking strips. The public right-of-way does not include lands owned, controlled or operated by the city for uses unrelated to streets or the passage of people and goods, such as, without limitation, parks, City Hall and community center lands, city yards, and lands supporting reservoirs, water towers, police or fire facilities and non-publicly accessible utilities.
(i) "Public works director" or "director" means the director of public works, or in the absence of such person someone designated by the city manager shall be responsible.
(j) "Small cell" means a low-powered antenna (node) that has a range of ten meters to two kilometers. The nodes of a small cell may or may not be connected by fiber. Small, for purposes of small cell, refers to the area covered, not the size of the facility. Small cell includes, but is not limited to, devices generally known as microcells, picocells and femtocells.
(k) "Small wireless facility(ies)" or "SWF" as defined in 47 C.F.R. 1.6002(1) as amended or superseded, which defines the term as facilities that meet each of the following conditions:
(1) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(2) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).
(3) The term includes any structure other than a tower that, at the time the relevant application is filed with the state or local government under this section, supports or houses equipment described in subsections (k)(1) and (2) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
(4) The term does not include any structure that, at the time the relevant application is filed with the state or local government under this section, does not support or house equipment described in subsections (k)(1) and (2) of this section.
(A) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of "antenna") is no more than three cubic feet in volume;
(B) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than twenty-eight cubic feet in volume;
(C) The facilities do not require antenna structure registration under 47 C.F.R. Part 17;
(D) The facilities are not located on tribal lands, as defined under 36 C.F.R. 800.16(x); and
(E) The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified by the FCC.
(l) "Master lease agreement" means a lease agreement between the city of Marysville and small cell permittees for the rights and obligations pertaining to using city structures and access to right-of-way to install small cell wireless facilities on city-owned streetlights.
(m) Reservation. Each permittee that has entered into a master lease agreement with the city may submit an application for up to five locations to reserve small cell locations for each (city-owned) small cell site based on the pole number and map available in the community development department with a fee per the city’s adopted fee schedule.
(n) "Wireless telecommunications facility" means equipment and network components such as antennas, accessory equipment, support structures, and emergency power systems that are integral to providing wireless telecommunications services (as defined in Government Code Section 65850.6). Exceptions: The term "wireless telecommunications facility" does not apply to the following:
(1) Government-owned and operated telecommunications facilities.
(2) Emergency medical care provider-owned and operated telecommunications facilities.
(3) Mobile services providing public information coverage of news events of a temporary nature.
(4) Any wireless telecommunications facilities exempted from this code by federal law or state law. (Ord. 1435 § 2, 2021).
11.32.030 Applicability.
(a) This chapter applies to the siting, construction, or modification of any and all small cell facilities proposed to be located in the PROW. Small cell facilities (or "SWFs") located in the PROW shall be governed by this chapter rather than the city’s zoning code.
(b) Nothing in this chapter shall validate any existing illegal or unpermitted small cell facilities. All existing SWFs shall comply with and receive a wireless encroachment permit, when applicable, to be considered legal and conforming.
(c) Notwithstanding any other provision of this chapter as provided herein, all small wireless facilities are subject to a permit as provided in this chapter. This chapter may be amended by city council resolution.
(d) This chapter does not apply to the following:
(1) Amateur radio facilities;
(2) Over the air reception devices (OTARD) antennas;
(3) Facilities owned and operated by the city for its use or for public safety purposes;
(4) Any entity legally entitled to an exemption pursuant to state or federal law or government franchise agreement, excepting that to the extent such terms of state or federal law, or franchise agreement, are preemptive of the terms of this chapter, then the terms of this chapter shall be severable to the extent of such preemption and all remaining regulations shall remain in full force and effect.
(e) Except as otherwise provided by state or federal law, any use of the PROW authorized pursuant to this chapter will be subordinate to the city’s use and use by the public. (Ord. 1435 § 2, 2021).
11.32.040 Administration.
Unless otherwise directed by resolution, the public works director or designee of the city shall be responsible for administering this chapter. As part of the administration of this chapter, the public works director or designee may:
(a) Interpret the provisions of this chapter;
(b) Develop and implement standards governing the placement and modification of wireless telecommunications facilities consistent with the requirements of this chapter, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities;
(c) Develop and implement acceptable design, location and development standards for wireless telecommunications facilities in the PROW, taking into account the zoning districts bounding the PROW;
(d) Develop forms and procedures for submission of applications for placement or modification of wireless facilities, and proposed changes to any support structure consistent with this chapter;
(e) Collect, as a condition of the completeness of any application, any fee established by this chapter;
(f) Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with federal laws and regulations;
(g) Issue any notices of incompleteness, requests for information, or conduct or commission studies as may be required to determine whether a permit should be issued;
(h) Require, as part of, and as a condition of completeness of any application, that an applicant for a wireless encroachment permit send notice to members of the public that may be affected by the placement or modification of the wireless facility and proposed changes to any support structure;
(i) Require, as a condition of any application, periodic monitoring of equipment once installed to verify it meets the FCC RF exposure standards. The monitoring shall occur one year after installation and every five years thereafter if the FCC standards are met. If the standards are not met, the permittee shall upgrade the equipment to meet the standards;
(j) Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and
(k) Take such other steps as may be required to timely act upon applications for placement of wireless telecommunications facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application. (Ord. 1435 § 2, 2021).
11.32.050 Small wireless facilities design and development guidelines.
(a) Small wireless facilities are subject to those design and development standards and conditions of approval set forth in this chapter and as found in the city of Marysville small cell submittals general procedures for small cells in the public right-of-way.
(b) Antennas. All equipment must be high-quality, safe, fire-resistant, modern in design and attractive in appearance, as approved by the city.
(1) All antennas and associated cables, connectors and hardware shall be placed within a shroud or equivalent, which shall be painted to match the associated pole.
(2) The antennas and related equipment shall be constructed out of nonreflective materials, painted and/or textured to match the existing support structure and painted to blend with their surroundings. Paint shall be reviewed and shown on the approved plans and specifications.
(3) Exposed cabling shall be minimized. All conduits, conduit attachments, cables, wires and other connectors shall be placed within the pole when feasible, or otherwise concealed from public view. A maximum of one antenna shroud per pole is allowed (excluding any radio relay unit shroud).
(4) Any fiber optic cable or wiring connecting the antenna to the equipment cabinet or pedestal shall be placed within a shroud or equivalent or inside a pole, where feasible, and shall be located underground to the equipment cabinet. All conduit, cable and wiring shall be located underground.
(5) The height of an existing pole (or replacement pole) may be modified to include pole-mounted equipment, such as antennas, brackets and related hardware, but the resulting height of the modified pole shall be no more than seven feet six inches taller than the height of the existing or original utility pole.
(c) Pole-Mounted Equipment. All equipment must be high-quality, safe, fire-resistant, modern in design and attractive in appearance, as approved by the city.
(1) Any pole-mounted equipment shall be incorporated into the design of the pole with the use of a shroud or other stealthing techniques.
(2) Equipment shall be concealed or enclosed as much as possible in an equipment box, cabinet, or other unit that may include ventilation openings to allow for passive cooling.
(3) All equipment shall be housed in a vertically oriented equipment cabinet centrally mounted on the side of utility pole. The cabinet shall not exceed two and one-half times the diameter of the utility pole and shall be painted to match the pole.
(4) Any pole-mounted equipment shall be placed at least seven feet above sidewalks or sixteen feet above streets on the street side of the pole and shall not obstruct line of sight at any intersection, signage, traffic control device, or street sign.
(5) Battery back-ups, if provided, shall be housed within the equipment cabinet and shall be limited to small size facilities designed to provide for a maximum of four hours of back up. Such facilities should be equipped with passive cooling features with no audible fans.
(6) Equipment shelters, cabinets or electrical distribution panels shall not be installed at the ground level, except after all reasonable alternative pole locations have been explored and found unavailable or lacking in some substantial way and only out of necessity, in the city’s sole discretion.
(7) Any cooling fan shall be housed in the equipment cabinet and shall not be audible at the adjacent property line.
The city prohibits SWFs to be installed on the following support assets/structures:
(A) Poles with existing electronic/communication devices,
(B) Traffic signal poles,
(C) The city has the right to withhold certain locations for its own use.
Ground-mounted equipment is not allowed unless it is infeasible in the determination of the director, and in which case such equipment shall be first undergrounded. If undergrounding cannot be achieved for reasons other than cost, such equipment shall be visually screened. If accessory equipment will be ground-mounted, such accessory equipment shall: (i) be enclosed within a structure; (ii) be located in adjacent landscape corridors if feasible; (iii) not exceed a height of five feet and a total footprint of fifteen square feet; and (iv) be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Electrical meters shall be wireless and not eligible for ground mounting.
(8) Asset Location.
(A) Reservation. The permittee may submit to the city a list of up to five asset locations they intend to use for mounting SWF with a reservation fee based on the pole number and map available in the community development department. The city shall confirm whether the proposed location is available.
(B) Once a reservation location is confirmed, the permittee shall have ninety days to submit an application to the city for an encroachment permit.
(C) Reserved locations will be reserved for no more than ninety days.
(D) Once an encroachment permit is issued, or the reservation expires, additional pole reservations may be made insomuch as the maximum number of reservations per permittee at any one time is five.
(E) The reservation fee shall be credited toward the encroachment permit fee provided it is issued within the ninety-day reservation period.
(F) If an encroachment permit is not issued within the ninety-day reservation period, the fee is forfeited, and the small cell pole site is reentered into the pool of available cell sites.
(9) Design Requirements.
(A) All installations shall comply with city small wireless facilities policies, small cell general procedures for small cell facilities in the public right-of-way, standard plans, adopted codes, and shall meet all relevant state and federal regulations and rules.
(B) Small cell devices:
(i) Shall be installed on pole structures or underground; ground-level installation is not permitted except by special approval.
(ii) Shall not cause any interference with the operation of city facilities, including signs, banners, festoon circuits, and miscellaneous lighting.
(iii) A maximum of two added equipment enclosures are allowed on a single pole including antenna shroud, PG&E meter and disconnect switch.
(iv) Antenna shroud, if applicable, shall not interfere with the mast arm.
(v) Devices and associated equipment shall be UL listed and FCC certified.
(vi) Devices shall not emit audible sounds beyond fifty-five decibels ("dB").
(vii) Finish and color of device/enclosure shall match existing asset.
(viii) Identification and warning labels shall be installed on all devices as required by code and standards. At least one warning label shall face towards the street.
(ix) If SWFs are proposed on historic light poles within the city’s historic district, every effort shall be made to minimize the SWFs from detracting from the look and feel of the historic light pole. Such SWFs will be examined by the city individually.
(C) Poles.
(i) Structural analysis including current and proposed equipment is required. Analysis shall be per latest California Building Code, and AASHTO LTS-6 (American Association of State Highway and Transportation Officials) Standard Specifications for Structural Supports for Highway Sign, Luminaires and Traffic Signals.
a. Risk level 3 structural analysis shall be performed by a California licensed civil/structural engineer and submitted to the city for review and approval.
(ii) Poles showing signs of damage or corrosion as identified by city inspector must be replaced in kind.
(iii) New foundation may be required when installing new street light pole.
(iv) Minimum foundation shall be per city of Marysville standard details. A larger foundation may be approved if required per structural analysis.
(v) If applicant desires a stronger pole to support the devices, replacement pole shall:
a. Meet current city standards or be reviewed and approved by city.
b. Pole Height/Mast Arm. To be reviewed and approved by city.
c. Foundation per current city of Marysville standards or larger as required by structural analysis.
d. Luminaires on replacement pole shall be re-installed from existing pole, except as per subsection (12)(d) of this section, LED Light Replacement.
e. Pole number labels, if incorrect or missing, shall be corrected.
(10) Accessory Equipment. It is the city’s preference that all accessory equipment be pole mounted or located underground.
(11) Wiring.
(A) External conduit attachment to the pole is not permitted.
(B) No visible wires, cables, or conduit.
(C) Splicing is permitted after the street light fuse disconnect.
(12) Electric Service. If sharing service with city facility, for each location, permittee shall:
(A) Survey and document all loads connected to circuit involved, including any nonstreetlight load. Circuit tracing shall be completed using proper circuit tracing equipment.
(B) Conduct load analysis to evaluate loading level and voltage drop. Calculations shall be completed by an electrical engineer and submitted to the city for review and approval.
(C) Reserve at minimum forty percent of circuit load capacity (not breaker rating) for city’s use.
(D) LED Light Replacement. When a small cell is proposed to be located on a city street pole with an existing lighting fixture, the applicant shall replace the fixture to an energy saving LED light at the discretion of the director.
(13) Metering.
(A) Service metering arrangement shall be reviewed and accepted by city.
(B) Applicant shall submit proof of approved service metering arrangements from PG&E (i.e., absolving service agreement) to the city prior to acceptance.
(C) Metering shall be wireless, unless infeasible, in which case metering equipment shall be undergrounded. Ground mounting for metering equipment shall be prohibited.
(14) Communication/Backhaul Service.
(A) Applicant shall secure their own communication/backhaul arrangements independent of city facilities. A separate encroachment permit will be required. (Ord. 1435 § 2, 2021).
11.32.060 Small wireless facility permit processing guidelines.
(a) Application Requirements and Contents.
(1) Completed master lease agreement between the permittee and the city of Marysville. The master lease agreement shall include an annual lease fee and require certification that the RF is within FCC safety requirements at the time of initial operation and provides for periodic RF testing to assure the small cell facility operates within FCC safety standards.
(2) Reservation request application.
(3) Completed encroachment permit application.
(b) The following information is required for a SWF permit:
(1) Three hard copies (eleven inches by seventeen inches in color) and one electronic copy of plans for each location.
(2) Plans must be stamped and signed by a current state of California licensed registered professional engineer.
(3) Plans should include but are not limited to:
(A) Site map;
(B) Designated pole number per city records;
(C) Photo simulations;
(D) Property lines;
(E) Right-of-way lines;
(F) Easement lines;
(4) Site dimensions.
(5) Two copies (eight and one-half inches by eleven inches) and one electronic copy of any site reports such as:
(A) EMF reports;
(B) Soils reports.
(6) Reports must be stamped and signed by the professional engineer preparing the report.
(7) Additional information may be required per the director of public works.
(8) A complete description of the proposed wireless telecommunications facility and any and all work that will be required to install or modify it, including, but not limited to, detail regarding proposed excavations, if any; detailed site plans showing the location of the wireless telecommunications facility, and dimensioned drawings with specifications for each element of the wireless facility, clearly describing the site and all structures and facilities at the site before and after installation or modification; and a dimensioned map identifying and describing the distance to the nearest residential dwelling unit and any historical structure within five hundred feet of the facility. "Before" and "after" three-hundred-sixty-degree photo simulations must also be provided.
(c) Resubmittals.
(1) At a minimum, the content of the resubmission of an application shall include the following:
(A) Three copies of construction drawings (eleven inches by seventeen inches).
(B) One copy of the structural analysis report, signed and stamped by a California licensed civil/structural engineer.
(C) Responses to previous round of comments.
(d) Permit Fees Submitted with Application(s). Application fee(s) shall be required for all permit applications including:
(1) A reservation fee as set forth in the city’s fee schedule for each site.
(2) Encroachment permit fee for each location (reservation fee may be credited toward the encroachment permit fee).
(3) Yearly lease as set forth in the executed master lease agreement.
(4) Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for a permit pursuant to this chapter.
(e) Review Timeline. The city acknowledges and understands that it must comply with federal and state shot clocks which mandate time periods in which the city must approve or deny a proposed small cell facilities permit application. As such, the city encourages applicants to provide the city written notice of the expiration of any shot clock no later than twenty days prior to the expiration.
(f) Costs. Reasonable costs of city staff, consultant and attorney time (including that of the city attorney) pertaining to the review, and processing directly attributable to a permit pursuant to this chapter shall be reimbursable to the city. To this end, the public works and/or community services director, as applicable, may require applicants to enter a trust/deposit reimbursement agreement, in a form approved by the city attorney, or other established trust/deposit accounting mechanism for purposes of obtaining an applicant deposit from which the direct costs of city processing of an application may be drawn. Permit application costs per current city of Marysville fee schedule at date of application submittal.
(g) Applications Deemed Withdrawn. To promote efficient review and timely decisions, any application governed under this chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the city on any application within thirty calendar days after the application is deemed incomplete in a written notice to the applicant. The public works director (as applicable) may, in his/her discretion, grant a written extension for up to an additional thirty calendar days when the applicant submits a written request prior to the ninetieth day that shows good cause to grant the extension.
(h) Waiver of Applications Superseded by Submission of New Project. If an applicant submits a permit application, but substantially revises the proposed facility during the application process prior to any decision on such application, the substantially revised application shall be deemed a new application for all processing purposes, including federal shot clocks, and the prior submittals deemed waived and superseded by the substantially revised application. For purposes of this subsection, "substantially revised" means that the project as initially proposed, has been alternately proposed for a location three hundred feet or more from the original proposal or constitutes a substantial change, as determined by the city, in the dimensions or equipment that was proposed in the original small cell facilities application.
(i) Rejection for Incompleteness. Each permit application will be processed, and notices of incompleteness provided, in conformity with state, local, and federal law. A notice of incompleteness shall be provided within ten calendar days after the application is submitted. In such event, the shot clock shall reset once the applicant submits the supplemental information requested by the city.
(j) Construction Requirements.
(1) Code Compliance. Include reference to PUC General Order GO95 for minimum pole strength.
(2) Existing Utility-Owned Poles. Indicate who will set the extension (applicant or PG&E).
(3) New Utility-Owned Poles. Show new and existing pole locations in plan view. Indicate who will set new pole. If not small cell applicant, a separate encroachment permit for new installation and old pole removal will be required. Small cell encroachment permit will not be finalized until completion of pole replacement encroachment permit by city inspector.
(4) ADA Compliance. Installation of equipment on a new or existing pole will require that the existing sidewalks approaching and adjacent to the pole meet current ADA, California Code of Regulations Title 24 and United States Access Board requirements for accessibility.
(5) Equipment on Utility-Owned Poles. Advisory note: if the permittee moves or is required to relocate or remove the pole, the permittee may be required to remove its equipment and apply for a new approval in the new location.
(6) Power. Indicate point of connection for power.
(7) Grounding. Applicant is responsible for proper grounding of equipment. If additional grounding is required after installation, a separate encroachment permit will be required to perform the installation of the grounding rods and associated protection structures where required. Ground rods are not allowed in city streets. City preference is to ground sufficiently close to pole so new boxes are not required.
(8) Point of Connect to Fiber. Indicate if fiber connection is via new lines to be strung, antenna installation or underground connection and by whom. If connection by another party, a separate encroachment permit will be required.
(9) Traffic Control Plans. Include site-specific traffic control plans that address vehicular, pedestrian and bicycle traffic.
(10) Tree Pruning. Indicate if tree pruning is required. Any tree pruning shall be performed by a certified arborist.
(11) Sidewalk and Street Restoration. Sidewalk and street restoration shall be per city standard plans. All restoration and transfers of other utilities to new poles shall be within ninety calendar days from setting of new pole.
(12) Small Cell Provider Logo. Include a small logo, maximum four inches in diameter, indicating the utility owning the small cell equipment on the piece of equipment closest to the ground. Lettering should be sufficiently large to be visible from the ground.
(13) City-Owned Poles. The cell applicant must notify the city of Marysville public works department if they remove their equipment from the pole.
(14) Once the permit is approved, the permittee must provide notice prior to construction:
(A) The written notices and a map showing the construction areas and including dates work will be performed shall be submitted to the public works inspector listed on the first page of the permit.
(k) Pole Replacement. If the public works inspector identifies damage or corrosion of the existing streetlight pole, the city will require revised plans and replacement of the pole and/or foundation.
(l) Traffic Control.
(1) Temporary traffic control plans shall be reviewed and approved by the public works inspector prior to permit issuance and prior to start of construction.
(2) Public works inspector and building department inspector shall conduct the following inspections to determine compliance; inspection request shall be submitted to the public works department forty-eight hours prior to inspection.
(A) Electrical inspection;
(B) Code inspection;
(C) Traffic control inspection;
(D) Construction inspection;
(E) Preferred method of conduit installation shall be behind curb if applicable.
(m) Records. At the completion of construction, permittee shall submit the following:
(1) As-builts;
(2) Streetlight datasheet (will be provided with approved permit package);
(3) Photograph of pole with devices installed (digital file identified by pole number). (Ord. 1435 § 2, 2021).
11.32.070 Operation, license and maintenance.
All small cell wireless telecommunications facilities must comply at all times with the following operation, license and maintenance standards:
(a) The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules, including, without limitation, those applying to use of the PROW. The permittee shall ensure that all equipment and other improvements to be constructed and/or installed in connection with the approved permit are maintained in a manner that is not detrimental or injurious to the public health, safety, and general welfare and that the aesthetic appearance is continuously preserved, and substantially the same as shown in the approved plans at all times relevant to the permit.
(b) Permittee shall obtain approval for each location and pay the appropriate fees established in the most current fee schedule.
(c) Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent at its sole cost within forty-eight hours:
(1) After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or
(2) After permittee, owner, operator or any designated maintenance agent receives notification from the city.
(3) Permittee shall replace street lights with LED lights at the time of installation.
(d) Insurance. The permittee shall obtain and maintain throughout the term of the permit and subsequent small cell site license a type and amount of insurance as specified by city’s risk management office. The relevant policy(ies) shall name the city, its elected/appointed officials, commission members, officers, representatives, agents, and employees as additional insured. The permittee shall use its best efforts to provide thirty days’ prior notice to the public works director of the cancellation or material modification of any applicable insurance policy.
(e) Indemnities. The permittee and, if applicable, the owner of the property upon which the wireless facility is installed shall defend, indemnify and hold harmless the city, its agents, officers, officials, and employees from: (1) any and all damages, liabilities, injuries, losses, costs, and expenses, and from any and all claims, demands, lawsuits, writs of mandamus, and other actions or proceedings brought against the city or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void or annul the city’s approval of the permit, and (2) any and all damages, liabilities, injuries, losses, costs, and expenses, and any and all claims, demands, lawsuits, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee or, if applicable, the private property owner or any of each one’s agents, employees, licensees, contractors, subcontractors, or independent contractors. In the event the city becomes aware of any such actions or claims the city shall promptly notify the permittee and, if applicable, the private property owner and shall reasonably cooperate in the defense. The city shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the city’s defense, and the property owner and/or permittee (as applicable) shall reimburse the city for any costs and expenses directly and necessarily incurred by the city in the course of defending such claims.
(f) Performance Bond. Prior to issuance of an encroachment permit, the permittee shall file with the city, and shall maintain in good standing throughout the term of the equipment occupancy, a performance bond or other surety or another form of security for the removal of the facility in the event that the use is abandoned, or the permit expires, or is revoked, or is otherwise terminated. The security shall be in the amount equal to one hundred percent of the cost of removal of the facility as specified in the application for the permit or as that amount may be modified by the public works director in the permit based on the characteristics of the installation. The permittee shall reimburse the city for staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by the city council. Reimbursement shall be paid when the security is posted and during each administrative review.
(g) Adverse Impacts on Adjacent Properties. Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, and removal of the facility. All facilities, including each piece of equipment, shall be located and placed in a manner so as to not interfere with the use of the PROW, impede the flow of vehicular or pedestrian traffic, impair the primary use and purpose of poles/signs/traffic signals or other infrastructure, interfere with outdoor dining areas or emergency facilities, or otherwise obstruct the accessibility of the PROW.
(h) City Signs and Pole-Mounted Cabinet Screening. Where city traffic control, or other informational signs are located on a pole proposed for a small cell facility, the pole-mounted equipment shall be screened behind such sign to the satisfaction of the director. Any remounting or special brackets necessary to secure the sign shall be at the applicant’s expense.
(i) Contact Information. Each permittee of a wireless telecommunications facility shall provide the public works director with the name, address and twenty-four-hour local or toll-free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility. Contact information shall be updated within seven days of any change.
(j) All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of:
(1) Subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility lines and systems (water, sewer, storm drains, gas, oil, electrical, etc.) that result from any activities performed in connection with the installation and/or maintenance of a wireless facility in the public right-of-way;
(2) General dirt and grease;
(3) Chipped, faded, peeling, and cracked paint;
(4) Rust and corrosion;
(5) Cracks, dents, and discoloration;
(6) Missing, discolored or damaged artificial foliage or other camouflage;
(7) Graffiti, bills, stickers, advertisements, litter and debris. All graffiti on facilities must be removed at the sole expense of the permittee within forty-eight hours after notification from the city;
(8) Broken and misshapen structural parts; and
(9) Any damage from any cause.
(k) All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in a neat, safe and good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the public works director.
(l) Any changes in equipment shall require a new permit.
(m) Each facility shall be operated and maintained to comply at all conditions of approval. The permittee, when directed by the city, must perform an inspection of the facility and submit a report to the public works director on the condition of the facility to include any identified concerns and corrective action taken. Additionally, as the city performs maintenance on city-owned infrastructure, additional maintenance concerns may be identified. These will be reported to the permittee. The city shall give the permittee thirty days to correct the identified maintenance concerns after which the city reserves the right to take any action it deems necessary, which could include revocation of the permit or license. The burden is on the permittee to demonstrate that it complies with the requirements herein. Prior to issuance of a permit under this chapter, the owner of the facility shall sign an affidavit attesting to understanding the city’s requirement for performance of annual inspections, reporting and license renewal.
(n) All facilities permitted pursuant to this chapter shall comply with the Americans with Disabilities Act.
(o) The permittee is responsible for obtaining power to the facility and for the cost of electrical usage.
(p) Noise.
(1) Backup generators or backup batteries shall be contained in the pole mounted equipment cabinet. Generators that produce noise may only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of seven p.m. and seven a.m.
(2) Cooling fans shall be housed in the pole-mounted equipment cabinet and such fan shall not be audible at the property line adjacent to the pole.
(q) Failure to comply with the city’s adopted noise standard after written notice and reasonable opportunity to cure have been given shall be grounds for the city to revoke the permit or license.
(r) Interference.
(1) The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the city shall be moved to accommodate a permitted activity or encroachment, unless the city determines that such movement will not adversely affect the city or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the city’s structure, improvement, or property. Prior to commencement of any work pursuant to an encroachment permit, the permittee shall provide the city with documentation establishing to the city’s satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement, or property within the PROW or city utility easement to be affected by the permittee’s facilities.
(2) The facility shall not damage or interfere in any way with city property, the city’s operations or the operations of prior-existing, third-party installations. The city will reasonably cooperate with the permittee and/or carrier to carry out such activities as are necessary to correct the interference.
(A) Signal Interference. The permittee shall correct any such interference within twenty-four hours of written notification of the interference. Upon the expiration of the twenty-four-hour cure period and until the cause of the interference is eliminated, the permittee shall cease operation of any facility causing such interference until such interference is cured.
(B) Physical Interference. The city shall give the permittee thirty days to correct the interference after which the city reserves the right to take any action it deems necessary, which could include revocation of the permit.
(3) The city at all times reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the sites. Such actions may temporarily interfere with the operation of the facility. The city will in all cases, other than emergencies, give the applicant thirty days’ written notification of such planned, nonemergency actions. The city is not responsible for loss of use.
(4) Radio Frequency Exposure Compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate radio frequency exposure standards. After transmitter and antenna system optimization, but prior to unattended operations of the facility, the permittee or its representative must conduct on-site post-installation radio frequency emissions testing to demonstrate actual compliance with the FCC Office of Engineering and Technology Bulletin 65 radio frequency emissions safety rules for general population/uncontrolled radio frequency exposure in all sectors. For this testing, the transmitter shall be operating at maximum operating power, and the testing shall occur outwards to a distance where the radio frequency emissions no longer exceed the uncontrolled/general population limit.
(A) Testing of any equipment shall take place on weekdays only, and only between the hours of eight-thirty a.m. and four-thirty p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days.
(5) Records. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition or fails to produce true and complete copies of such records within a reasonable time after a written request from the city, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.
(6) Attorney’s Fees. In the event the city determines that it is necessary to take legal action to enforce any of these conditions, or to revoke a permit, and such legal action is taken, the permittee shall be required to pay any and all costs of such legal action, including reasonable attorney’s fees, incurred by the city, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the city should otherwise agree with permittee to waive said fees or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement proceeding. (Ord. 1435 § 2, 2021).
11.32.080 No dangerous conditions or obstructions allowed.
No person shall install, use or maintain any small cell wireless telecommunications facility that in whole or in part rests upon, in or over any PROW, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. (Ord. 1435 § 2, 2021).
11.32.090 Nonexclusive grant.
(a) No permit or approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the PROW of the city for any purpose whatsoever. Further, no approval shall be construed as a warranty of title.
(b) No possessory interest is created by a wireless telecommunications facility permit. However, to the extent that a possessory interest is deemed created by a governmental entity with taxation authority, the permittee acknowledges that the city has given to the applicant notice pursuant to California Revenue and Taxation Code Section 107.6, that the use or occupancy of any public property pursuant to a permit may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Wireless telecommunications facility operators shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes, fees, and assessments levied against their right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by the permit.
(c) The permission granted by a permit shall not in any event constitute an easement on or an encumbrance against the PROW. No right, title, or interest (including franchise interest) in the PROW, or any part thereof, shall vest or accrue in permittee by reason of a wireless encroachment permit or the issuance of any other permit or exercise of any privilege given thereby. (Ord. 1435 § 2, 2021).
11.32.100 Legal nonconforming wireless telecommunications facilities.
(a) Legal nonconforming wireless telecommunications facilities are those facilities that existed but did not conform to this chapter on the date this chapter became effective.
(b) Legal nonconforming wireless telecommunications facilities shall, within ten years from the date this chapter became effective, be brought into conformity with all requirements of this chapter; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this code at such time, to the extent the city can require such compliance under federal and state law.
(c) An aggrieved person may file an appeal to the city manager of any decision of the public works director or other deciding body made pursuant to this section. In the event of an appeal alleging that the ten-year amortization period is not reasonable as applied to a particular property, the city manager may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property. (Ord. 1435 § 2, 2021).
11.32.110 Permit term.
(a) Permit Term. A permit for a small cell facility shall be valid for a period of ten years unless Government Code Section 65964 is amended to allow for a shorter period or the permit lapses or is revoked sooner pursuant to another provision of this code. At the end of ten years from the date of issuance, such permit shall automatically expire.
(b) Renewal. A permittee may apply for a new permit within one hundred eighty days prior to expiration. Said application and proposal shall comply with the city’s current code requirements for wireless telecommunications facilities. (Ord. 1435 § 2, 2021).
11.32.120 Abandonment.
(a) A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for ninety or more consecutive days unless the permittee has obtained prior written approval from the public works director which shall not be unreasonably denied. If there are two or more users of a single facility, then this provision shall not become effective until all users cease using the facility.
(b) The operator of a facility shall notify the public works director in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the public works director of any discontinuation of operations of thirty days or more.
(c) Failure to inform the public works director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approval and be grounds for:
(1) Litigation;
(2) Revocation or modification of the permit;
(3) Acting on any bond or other assurance required by this chapter or conditions of approval of the permit;
(4) Removal of the facilities by the city in accordance with the procedures established under this code for abatement of a public nuisance at the owner’s expense; and/or
(5) Any other remedies permitted under this code or by law. (Ord. 1435 § 2, 2021).
11.32.130 Removal and restoration upon permit expiration, revocation or abandonment.
(a) Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the small cell facility permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to the condition it was in prior to the granting of the permit, except for retaining the landscaping improvements and any other improvements at the discretion of the city.
Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the city. Expired, terminated or revoked wireless telecommunications facility equipment shall be removed from the site at no cost or expense to the city.
(b) Failure of the permittee, owner or operator to promptly remove its facility and restore the property within ninety days after expiration, earlier termination or revocation of the small cell facilities permit, or abandonment of the facility, shall be a violation of this code. Upon a showing of good cause, an extension may be granted by the public works director where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for:
(1) Prosecution;
(2) Acting on any security instrument required by this chapter or conditions of approval of permit;
(3) Removal of the facilities by the city in accordance with the procedures established under this code for abatement of a public nuisance at the owner’s expense; and/or
(4) Any other remedies permitted under this code or by law.
(c) Removal—Exigent Circumstances. In the event the director of public works or city engineer determines that the condition or placement of a wireless telecommunications facility located in the PROW constitutes a dangerous condition, obstruction of the PROW, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, "exigent circumstances"), such director or city engineer may cause the facility to be removed summarily and immediately without advance notice or hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five business days of removal and all property removed shall be preserved for the owner’s pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick up the property within sixty days, the facility shall be treated as abandoned property.
(d) Removal of Facilities by City. In the event the city removes a wireless telecommunication facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the city for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the city may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this code. Unless otherwise provided herein, the city has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the city destroys any such facility not timely removed by the permittee, owner or operator after notice or removal by the city due to exigent circumstances. (Ord. 1435 § 2, 2021).
11.32.140 Effect on other ordinances.
Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this code. In the event of a conflict between any provision of this chapter and other sections of this code, this chapter shall control. (Ord. 1435 § 2, 2021).
11.32.150 State or federal law.
The implementation of this chapter and decisions on applications for placement of small cell facilities in the PROW shall, at a minimum, ensure that the requirements of this chapter are satisfied, unless it is determined that the applicant has established that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. If that determination is made, the requirements of this chapter may be waived, but only to the minimum extent required to avoid the prohibition or violation. (Ord. 1435 § 2, 2021).