Chapter 20.49
WIRELESS TELECOMMUNICATIONS FACILITIES

Sections:

20.49.010    Purpose.

20.49.020    Effect of Chapter.

20.49.030    Definitions.

20.49.040    Telecom Facility Preferences and Prohibited Locations.

20.49.050    General Development and Design Standards.

20.49.060    Permit Review Procedures.

20.49.070    Permit Implementation, Time Limits, Extensions, and Appeals.

20.49.080    Agreement for Use of City-Owned or City-Held Trust Property.

20.49.090    Modification and Collocation of Existing Telecom Facilities.

20.49.100    Operational and Radio Frequency Compliance and Emissions Report.

20.49.110    Right to Review, Revoke or Modify a Permit.

20.49.120    Removal of Telecom Facilities.

20.49.010 Purpose.

A.    The purpose of this chapter is to provide for the installation, modification, operation and maintenance of wireless telecommunication facilities (“telecom facilities”) on public and private property consistent with State and Federal law while ensuring public safety, minimizing the visual effects of telecom facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of telecom facilities on the community.

B.    Telecom facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of telecom facilities in the City and minimize their visual impact on the community.

C.    The provisions of this chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecommunication services. This chapter shall be applied to providers, operators, and maintainers of telecommunication services regardless of whether authorized by or subject to State or Federal regulations. This chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecommunication services. (Ord. 2014-1 § 10 (part), 2014)

20.49.020 Effect of Chapter.

A.    Regulatory Scope. These regulations are applicable to all telecom facilities as defined herein and that provide wireless voice and/or data transmission such as, but not limited to, cell phone, Internet, and radio relay stations.

B.    Permit and Agreement Required. Unless the provisions of this chapter provide otherwise, prior to installation or modification of any telecom facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), Limited Term Permit (LTP), or Zoning Clearance (ZC) in accordance with Section 20.49.060 (Permit Review Procedures). Applicants who obtain a MUP, CUP, LTP, or ZC (and an encroachment permit, if required) for any telecom facility approved to be located on any City-owned property or City-held trust property, shall enter into an agreement prepared and executed by the City Manager or his or her designee prior to installation of the facility, consistent with Section 20.49.080 (Agreement for Use of City-Owned or City-Held Trust Property).

C.    Exempt Facilities. The following types of telecom facilities are exempt from the provisions of this chapter:

1.    Amateur radio antennas and receiving satellite dish antennas, and citizen band radio antennas regulated by Section 20.48.190 (Satellite Antennas and Amateur Radio Facilities).

2.    Dish and other antennas subject to the FCC Over-the-Air Reception Devices (“OTARD”) rule, 47 C.F.R. Section 1.4000 that are designed and used to receive video programming signals from (a) direct broadcast satellite services, or (b) television broadcast stations, or (c) for wireless cable service.

3.    During an emergency, as defined by Title 2 of the NBMC, the City Manager, Director of Emergency Services or Assistant Director of Emergency Services shall have the authority to approve the placement of a telecom facility in any district on a temporary basis not exceeding ninety (90) calendar days from the date of authorization. Such authorization may be extended by the City on a showing of good cause.

4.    Facilities exempt from some or all of the provisions of this chapter by operation of State or Federal law to the extent so determined by the City.

5.    Systems installed or operated at the direction of the City or its contractor.

6.    Systems installed entirely within buildings for the sole purpose of providing wireless telecommunications or data transmission services to building occupants.

D.    Other Regulations. Notwithstanding the provisions of this chapter, all telecom facilities within the City shall comply with the following requirements:

1.    Rules, regulations, policies, or conditions in any permit, license, or agreement issued by any local, State or Federal agency which has jurisdiction over the telecom facility.

2.    Rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC).

E.    Regulations Not in Conflict or Preempted. All telecom facilities within the City shall comply with the following requirements unless in conflict with or preempted by the provisions of this chapter:

1.    All applicable City design guidelines and standards.

2.    Requirements established by any other provision of the Municipal Code and by any other ordinance and regulation of the City.

F.    Legal Nonconforming Facility. Any telecom facility that was lawfully constructed, erected, or approved prior to February 27, 2014, that is operating in compliance with all applicable laws, and which facility does not conform to the requirements of this chapter shall be deemed a legal nonconforming facility. Legal nonconforming facilities shall comply at all times with the laws, ordinances, regulations, and any conditions of approval in effect at the time the facility was approved, and any regulations pertaining to legal, nonconforming uses or structures that may be applicable pursuant to provisions of the Municipal Code or Federal and State laws as they may be amended or enacted, in the future. (Ord. 2014-1 § 10 (part), 2014)

20.49.030 Definitions.

For the purposes of this chapter, the following definitions shall apply:

A.    Antenna. “Antenna” means a device used to transmit and/or receive radio or electromagnetic waves between earth and/or satellite-based systems, such as reflecting discs, panels, microwave dishes, whip antennas, antennas, arrays, or other similar devices.

B.    Antenna Array. “Antenna array” means antennas having transmission and/or reception elements extending in more than one direction, and directional antennas mounted upon and rotated through a vertical mast or tower interconnecting the beam and antenna support structure, all of which elements are deemed to be part of the antenna.

C.    Base Station. “Base station” means the electronic equipment and appurtenant support equipment at a telecom facility installed and operated by the telecom operator that together perform the initial signal transmission and signal control functions. A base station does not include the antennas, antenna support structure, or any portion of distributed antenna system (DAS).

D.    City-Owned or City-Held Trust Property. “City-owned or City-held trust property” means all real property and improvements owned, operated or controlled by the City, other than the public right-of-way, within the City’s jurisdiction, including but not limited to City Hall, police and fire facilities, recreational facilities, parks, beaches, libraries, monuments, signs, streetlights and traffic control standards.

E.    Collocation. “Collocation” means an arrangement whereby multiple telecom facilities are installed on the same building or structure.

F.    Distributed Antenna System, DAS. “Distributed antenna system (DAS)” means a network of one or more antennas and fiber optic nodes typically mounted to streetlight poles, or utility structures, which provide access and signal transfer services to one or more third-party wireless service providers. DAS also includes the equipment location, sometimes called a “hub” or “hotel” where the DAS network is interconnected with third-party wireless service providers to provide the signal transfer services.

G.    Facility Classes. Classes of telecom facilities and the attendant support equipment are categorized into the following classes:

1.    Class 1 (Stealth/Screened): a facility with antennas mounted on an existing or proposed nonresidential building or other structure not primarily intended to be an antenna support structure where antennas and support equipment, including the base station, are fully screened so that they are not visible to the general public.

2.    Class 2 (Visible Antennas): a facility with antennas mounted on an existing nonresidential building, structure, pole, light standard, utility tower, wireless tower and/or lattice tower.

3.    Class 3 (Public Right-of-Way Installations): a facility with antennas installed on a structure located in the public right-of-way.

4.    Class 4 (Freestanding Structure): a facility with antennas mounted on a new freestanding structure constructed for the sole or primary purpose of supporting the telecom facility.

5.    Class 5 (Temporary): a facility including associated support equipment that is installed at a site on a temporary basis pursuant to a limited term permit. A Class 5 installation may also be installed in connection with a special event upon the approval of a special events permit pursuant to Chapter 11.03 with or without a limited term permit.

H.    FCC. “FCC” means the Federal Communications Commission, or the Federal regulatory agency charged with regulating interstate and international communications by radio, television, wire, satellite, and cable.

I.    Feasible or Feasibly. “Feasible” or “feasibly” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors.

J.    Lattice Tower. “Lattice tower” means a freestanding open framework structure used to support antennas, typically with three or four support legs of open metal crossbeams or crossbars.

K.    Monopole. “Monopole” means a single free-standing pole or pole-based structure solely used to act as or support a telecom antenna or antenna arrays.

L.    Operator or Telecom Operator. “Operator” or “telecom operator” means any person, firm, corporation, company, or other entity that directly or indirectly owns, leases, runs, manages, or otherwise controls a telecom facility or facilities within the City. The definition of operator or telecom operator does not include a property owner(s) that leases property to an operator for a telecom facility.

M.    Public Right-of-Way. “Public right-of-way” (“PROW”) means the improved or unimproved surface of any public street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and/or pedestrian related use. PROW includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. The PROW does not include private streets.

N.    Stealth or Stealth Facility. “Stealth” or “stealth facility” means a telecom facility in which the antenna, and the support equipment, are completely hidden from view such as in a monument, cupola, pole-based structure, or other concealing structure which either mimics, or which also serves as, a natural or architectural feature. Concealing structures which are obviously not such a natural or architectural feature to the average reasonable observer do not qualify within this definition. For example, an artificial tree may not be considered to be a stealth facility.

O.    Support Equipment. “Support equipment” means the physical, electrical and/or electronic equipment included within a telecom facility used to house, power, and/or contribute to the processing of signals from or to the facility’s antenna or antennas, including but not limited to a base station, cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support equipment does not include DAS, antennas or the building or structure to which the antennas or other equipment are attached.

P.    Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. “Telecommunication(s) facility,” “telecom facility,” “telecom facilities,” “wireless telecommunications facility,” or simply “facility” or “facilities” means an installation that sends and/or receives wireless radio frequency signals or electromagnetic waves, including but not limited to directional, omni-directional and parabolic antennas, structures or towers to support receiving and/or transmitting devices, supporting equipment and structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios/telephones and their associated transmitting antennas.

Q.    Utility Pole. “Utility pole” means a single freestanding pole used to support services provided by a public or private utility provider.

R.    Utility Tower. “Utility tower” shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities.

S.    Wireless Tower. “Wireless tower” means any structure built for the sole or primary purpose of supporting antennas used to provide wireless services authorized by the FCC. A distributed antenna system (DAS) installed pursuant to a Certificate of Public Convenience and Necessity (CPCN) issued by the California Public Utilities Commission on a water tower, utility tower, street light, or other structures built or rebuilt or replaced primarily for a purpose other than supporting wireless services authorized by the FCC, including any structure installed pursuant to California Public Utility Code Section 7901, is not a wireless tower for purposes of this definition. For an example only, a prior-existing street light standard which is replaced with a new street light standard to permit the addition of antennas shall not be considered a wireless tower, but rather a replacement street light standard. (Ord. 2014-1 § 10 (part), 2014)

20.49.040 Telecom Facility Preferences and Prohibited Locations.

A.    Preferred Locations. To limit the adverse visual effects of and proliferation of new or individual telecom facilities in the City, the following list establishes the order of preference of facilities, from the most preferred (1) to least preferred (4).

1.    Collocation of a new facility at an existing facility.

2.    Class 1.

3.    Class 2 and Class 3.

4.    Class 4.

B.    Prohibited Locations. Telecom facilities are prohibited in the following locations:

1.    On properties zoned for single-unit or two-unit residential development including equivalent designations within a planned community district or specific plan districts except if located on common area lots developed with community facilities, landscape lots, or private streets.

2.    On properties zoned for multi-unit residential development and mixed-use development including equivalent planned community district or specific plan districts where the maximum allowable number of dwelling units is four units.

3.    In the Open Space (OS) Zoning District, unless telecom facilities are collocated on an existing utility tower within a utility easement area, or collocated on an existing facility.

4.    On traffic control standards (traffic signal poles). (Ord. 2014-1 § 10 (part), 2014)

20.49.050 General Development and Design Standards.

A.    General Criteria. All telecom facilities shall employ design techniques to minimize visual impacts and provide appropriate screening to result in the least visually intrusive means of providing the service. Such techniques shall be employed to make the installation, appearance and operations of the facility as visually inconspicuous as practicable. To the greatest extent feasible, facilities shall be designed to minimize the visual impact of the facility by means of location, placement, height, screening, landscaping, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area.

In addition to the other design standards of this section, the following criteria shall be considered by the review authority in connection with its processing of any MUP, CUP, LTP, or ZC for a telecom facility:

1.    Blending. The extent to which the proposed telecom facility blends into the surrounding environment or is architecturally compatible and integrated into the structure.

2.    Screening. The extent to which the proposed telecom facility is concealed or screened by existing or proposed new topography, vegetation, buildings or other structures.

3.    Size. The total size of the proposed telecom facility, particularly in relation to surrounding and supporting structures.

4.    Location. Proposed telecom facilities shall be located so as to utilize existing natural or manmade features in the vicinity of the facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop.

5.    Collocation. In evaluating whether the collocation of a telecom facility is feasible, the criteria listed in subsections (A)(1) through (4) of this section shall be used to evaluate the visual effect of the combined number of facilities at the proposed location.

B.    Public View Protection. All new or modified telecom facilities, whether approved by administrative or discretionary review, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts from a new or modified telecom facility to public views that are not identified by General Plan Policy NR 20.3 shall be evaluated to determine if inclusion in Policy NR 20.3 would be appropriate. If deemed appropriate for inclusion, the potential impacts to such public views shall be considered.

C.    Height.

1.    The Planning Commission or City Council may approve or conditionally approve a CUP for a telecom facility that exceeds the maximum height limit for the zoning district in which the facility is located; provided, it does not exceed the maximum height limit by fifteen (15) feet, only after making all of the required findings in Section 20.49.060(H) (Required Findings for Telecom Facilities).

2.    All telecom facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060(E) (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements) as may be in force at the time the telecom facility is permitted or modified.

3.    Telecom facilities installed on streetlights, utility poles, utility towers or other similar structures within the public right-of-way shall not exceed thirty-five (35) feet in height above the finished grade.

4.    Telecom facilities may be installed on existing utility poles or utility towers that exceed thirty-five (35) feet above the finished grade where the purposes of the existing utility pole or utility tower is to carry electricity or provide other wireless data transmission; provided, that the top of the proposed antennas do not extend above the top of the utility pole or utility tower.

5.    Telecom facilities disguised as flagpoles may be installed provided they meet applicable height limits for flagpoles provided in Section 20.30.060.

D.    Setbacks. Proposed telecom facilities shall comply with the required setback established by the development standards for the zoning district in which the facility is proposed to be located. Setbacks shall be measured from the part of the facility closest to the applicable lot line or structure.

E.    Design Techniques. Design techniques shall result in the installation of a telecom facility that is in harmony and scale with the surrounding area, screens the installation from view, and prevents the facility from visually dominating the surrounding area. Design techniques may include the following:

1.    Screening elements to disguise, or otherwise hide the telecom facility from view from surrounding uses.

2.    Painting and/or coloring the telecom facility to blend into the predominant visual backdrop.

3.    Siting the telecom facility to utilize existing features (such as buildings, topography, vegetation, etc.) to screen or hide the facility.

4.    Utilizing simulated natural features (trees, rocks, etc.) to screen or hide the telecom facility.

5.    Providing telecom facilities of a size that, as determined by the City, is not visually obtrusive such that any effort to screen the facility would create greater visual impacts than the facility itself.

6.    To the greatest extent practicable, new Class 4 facilities shall be designed and sited to facilitate the collocation of one additional telecom operator.

F.    Screening Standards. For collocation installations, the screening method shall be materially similar to those used on the existing telecom facility, and shall not diminish the screening of the facility. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the antennas and support equipment from public view. The following is a non-exclusive list of potential design and screening techniques that must be considered for all facility installations:

1.    Class 1 (Stealth/Screened) Installations.

a.    All telecom facility components, including all antennas, antenna panels, cables, wires, conduit, mounting brackets, and support equipment, shall be fully screened, and mounted either inside the building or structure, or behind screening elements and not on the exterior face of the building or structure.

b.    Screening materials shall match in color, size, proportion, style, and quality with the exterior design and architectural character of the structure and the surrounding visual environment. If determined necessary by the reviewing authority, screening to avoid adverse impacts to views from land or buildings at higher elevations shall be required.

c.    When a telecom facility is proposed within an existing or new architectural feature such as a steeple, religious symbol, tower, cupola, clock tower, sign tower, etc., the facility shall be architecturally compatible with the existing structure or building.

2.    Class 2 (Visible) Installations.

a.    Building or structure mounted antennas shall be painted or otherwise coated to match or complement the predominant color of the structure on which they are mounted and shall be compatible with the architectural texture and materials of the building to which the antennas are mounted. No cables, wires, conduit, mounting brackets or any other associated support equipment shall be visible.

b.    All antenna components and support equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background and/or adjacent architecture so as to visually blend in with the surrounding development. Subdued colors and nonreflective materials that blend with surrounding materials and colors shall be used.

3.    For Class 3 (Public Right-of-Way) Installations.

a.    Whenever feasible, new antennas proposed to be installed in the public right-of-way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles or utility poles shall be screened by means of canisters, radomes, shrouds other screening measures whenever feasible, and treated with exterior coatings of a color and texture to match the existing pole.

b.    New or replacement vertical structures may be allowed when authorized by the Municipal Code and approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed, provided they match existing or planned poles within the area.

c.    If antennas are proposed to be installed without screening, they shall be flush-mounted to the pole and shall be treated with exterior coatings of a color and texture to match the pole.

4.    Class 4 (Freestanding Structure) Installations.

a.    The installation of new lattice towers or monopoles with visible antennas or antenna arrays is strongly discouraged due to the visual effects of such facilities. Preferred monopole designs include fully screened antennas without visible brackets, cables, or conduit. Additionally, any lattice tower or monopole should be sited in the least obtrusive location as practicable.

b.    The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the telecom facility.

c.    The installation of artificial rocks shall match in scale and color with other rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings.

d.    The installation of artificial trees or shrubbery is strongly discouraged if they are obviously not natural to the average reasonable observer. When an artificial tree or shrubbery is proposed, it shall be designed for and located in a setting that is compatible with the proposed screening method. Such installations shall be situated so as to utilize existing natural or manmade features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening. All antennas and antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements.

e.    Flagpoles shall not exceed twenty-four (24) inches in width at the base of the flagpole and also shall not exceed twenty (20) inches in width at the top of the flagpole.

5.    Class 5 (Temporary) Installations. A temporary telecom facility installation may require screening to reduce visual impacts depending on the duration of the permit and the setting of the proposed site. If screening methods are determined to be necessary by the review authority, the appropriate screening methods will be determined through the application review and permitting process in consideration of the temporary nature of the facility.

6.    Support Equipment. All support equipment associated with the operation of any telecom facility shall be placed or mounted in the least visually obtrusive location practicable, and shall be screened from view.

a.    Installations on Private Property. The following is a non-exclusive list of potential screening techniques for telecom facilities located on private property:

i.    Building-Mounted Telecom Facilities. For building- or structure-mounted antenna installations, support equipment for the facility may be located inside the building, in an underground vault, or on the roof of the building that the facility is located on; provided, that both the equipment and any screening materials are architecturally compatible and/or painted the color of the building, roof, and/or surroundings thereby providing screening.

ii.    Roof-Mounted Telecom Facilities. All screening materials for roof-mounted facilities shall be of a quality and design compatible with the architecture, color, texture and materials of the building to which it is mounted. If determined necessary by the review authority, screening to avoid adverse impacts to views from land or buildings at higher elevations shall be required.

iii.    Freestanding Telecom Facilities. For freestanding facilities installations, not mounted on a building or structure, support equipment for the facility may be visually screened by locating the support equipment in a fully enclosed building, in an underground vault, or in a security enclosure consisting of walls and/or landscaping to effectively screen the support equipment at the time of installation.

iv.    All wall and landscaping materials shall be selected so that the resulting screening will be visually integrated with the architecture and landscape architecture of the surroundings.

v.    Screening enclosures may utilize graffiti-resistant and climb-resistant vinyl-clad chain link with a “closed-mesh” design (i.e., one-inch gaps) or may consist of an alternate enclosure design approved by the review authority. In general, the screening enclosure shall be made of nonreflective material and painted to blend with surrounding materials and colors.

vi.    If placed in an underground vault, flush-to-grade vents, or alternatively, vents that extend no more than twenty-four (24) inches above the finished grade and are screened from public view may be utilized.

b.    Installations in a Public Right-of-Way. The following is a non-exclusive list of potential screening techniques for telecom facilities located in a public right-of-way:

i.    Where existing utilities services (e.g., telephone, power, cable TV) are located underground, the support equipment shall be placed underground if required by other provisions of the Municipal Code. Flush-to-grade underground vault enclosures, including flush-to-grade vents, or vents that extend no more than twenty-four (24) inches above the finished grade and are screened from public view may be incorporated. Electrical meters required for the purpose of providing power for the proposed telecom facility may be installed above ground on a pedestal in a public right-of-way provided they meet applicable standards of Title 13 unless otherwise precluded by the Municipal Code.

ii.    Support equipment approved to be located above ground in a public right-of-way shall be painted or otherwise coated to be visually compatible with the existing or replacement pole, lighting and/or traffic signal equipment without substantially increasing the width of the structure.

iii.    All transmission or amplification equipment such as remote radio units, tower mounted amplifiers, and surge suppressors shall be mounted inside the utility or streetlight pole without materially increasing the pole diameter or shall be installed in the vault enclosure supporting the facility.

G.    Night Lighting. Telecom facilities shall not be lighted except for security lighting at the lowest intensity necessary for that purpose or as may be recommended by the United States Flag Code (4 U.S.C. Section 1 et seq.). Such lighting shall be shielded so that direct illumination does not directly shine on nearby properties. The review authority shall consult with the Police Department regarding proposed security lighting for facilities on a case-by-case basis.

H.    Signs and Advertising. No advertising signage or identifying logos shall be displayed on any telecom facility except for small identification, address, warning, and similar information plates. Such information plates shall be identified in the telecom application and shall be subject to approval by the review authority. Signage required by State or Federal regulations shall be allowed in its smallest permissible size.

I.    Nonconformities. A proposed or modified telecom facility shall not create any new or increased nonconformity as defined in the Zoning Code, such as, but not limited to, a reduction in and/or elimination of, required parking, landscaping, or loading zones unless relief is sought pursuant to applicable zoning code procedures.

J.    Maintenance. The telecom operator shall be responsible for maintenance of the telecom facility in a manner consistent with the original approval of the facility, including but not limited to the following:

1.    Any missing, discolored, or damaged screening shall be restored to its original permitted condition.

2.    All graffiti on any components of the telecom facility shall be removed promptly in accordance with the Municipal Code.

3.    All landscaping required for the telecom facility shall be maintained in a healthy condition at all times, and shall be promptly replaced if dead, dying, or damaged.

4.    All telecom facilities shall be kept clean and free of litter.

5.    All equipment cabinets shall display a legible contact number for reporting maintenance problems to the telecom operator.

6.    If a flagpole is used for a telecom facility, flags shall be flown and shall be properly maintained at all times. The use of the United States flag shall comply with the provisions of the U.S. Flag Code (4 U.S.C. Section 1 et seq.). (Ord. 2014-1 § 10 (part), 2014)

20.49.060 Permit Review Procedures.

A.    Application Procedures. Applications for telecom facilities shall be subject to Chapters 20.50 (Permit Application Filing and Processing), 20.52 (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this section. Applications shall be processed consistent with State and Federal regulations as the same may be amended from time to time such as the application processing times set forth in FCC Declaratory Ruling FCC 09-99. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred by the City for outside third-party technical review required by the application.

B.    Installations in the Public Right-of-Way. All telecom facilities proposed to be located in the public right-of-way shall comply with the provisions of the Municipal Code including but not limited to the provisions of Title 13 as it may be amended from time to time.

C.    Application Submission Requirements for Telecom Facilities on City-Owned or City-Held Trust Properties. Prior to the submittal for any application for any facility located on any City-owned property or City-held trust property, the applicant shall first obtain written consent to the application from the City Manager or his or her designee.

D.    Permit Required. All telecom facilities shall obtain a MUP, CUP, LTP, or ZC as provided for in Table 4-1 unless prohibited by Section 20.49.040(B). Notwithstanding permits identified in Table 4-1, any application for a facility that proposes to exceed the maximum height limit of the applicable zoning district in which the facility is located shall require approval of a CUP by the Planning Commission.

Table 4-1

Permit Requirement for Telecom Facilities

Facility Class

Permit

Class 1

ZC

Class 2

MUP

Class 3

MUP

Class 4

CUP

Class 5

LTP

E.    Review of Collocated Facilities. Notwithstanding any provision of this chapter to the contrary, and consistent with California Government Code Section 65850.6 (as amended or superseded), the addition of a new facility to an existing facility resulting in the establishment of a collocated telecom facility shall be allowed without discretionary review if it complies with Section 20.49.090. If a collocated telecom facility does not satisfy all of the requirements of Government Code Section 65850.6 and Section 20.49.090, the facility shall be reviewed pursuant the review procedures provided in Table 4-1.

F.    Emergency Communications Review. At the time an application is submitted to the Community Development Department, a copy of the plans, map, and emission standards shall be sent to the Chief of the Newport Beach Police Department. The Police Department or its designee shall review the plan’s potential conflict with emergency communications. The review may include a pre-installation test of the telecom facility to determine if any interference exists. If the Police Department determines that the proposal has a high probability that the facility will interfere with emergency communications devices, the applicant shall work with the Police Department to avoid interference.

G.    Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require public notice and a public hearing in accordance with Chapter 20.62 (Public Hearings).

H.    Required Findings for Telecom Facilities. The following findings shall apply to all facilities requiring discretionary review:

1.    General. The review authority may approve or conditionally approve an application for a telecom facility only after first finding each of the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and each of the following findings:

a.    The proposed telecom facility is visually compatible with the surrounding neighborhood.

b.    The proposed telecom facility complies with height, location and design standards, as provided for in this chapter.

c.    An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site.

d.    An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances.

2.    Findings to Increase Height. The review authority may approve or conditionally approve an application for a telecom facility which includes a request to exceed the maximum height limit for the zoning district in which the facility is located up to a maximum of fifteen (15) feet only after making each of the following findings in addition to the general findings set forth in subsection (H)(1) of this section and the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits):

a.    The increased height will not result in undesirable or abrupt scale changes or relationships being created between the proposed telecom facility and existing adjacent developments or public spaces.

b.    Establishment of the telecom facility at the requested height is necessary to provide service. (Ord. 2014-1 § 10 (part), 2014)

20.49.070 Permit Implementation, Time Limits, Extensions, and Appeals.

A.    The process for implementation or “exercising” of permits issued for a telecom facility, time limits, and extensions, shall be in accordance with Chapter 20.54 (Permit Implementation, Time Limits, and Extensions).

B.    Appeals. Any appeal of the decision of the review authority of an application for a telecom facility shall be processed in compliance with Chapter 20.64 (Appeals). (Ord. 2014-1 § 10 (part), 2014)

20.49.080 Agreement for Use of City-Owned or City-Held Trust Property.

In applying for a permit pursuant to this chapter, all telecom facilities located on City-owned or City-held trust property shall require a license agreement approved as to form by the City Attorney, and as to substance (including, but not limited to, compensation, term, insurance requirements, bonding requirements, and hold harmless provisions) by the City Manager, consistent with provisions of the Municipal Code and any applicable provisions of the City Council Policy Manual.

Prior to City approval of a license agreement, the applicant shall obtain a MUP, CUP, LTP or ZC. Upon the issuance of a MUP, CUP, LTP or ZC, as required, and with an approved license agreement, the applicant shall obtain any and all necessary ministerial permits, including encroachment permits for work to be completed in the public right-of-way and building permits, etc. All costs of said permits shall be at the sole and complete responsibility of the applicant. All work shall be performed in accordance with the applicable City standards and requirements. (Ord. 2014-1 § 10 (part), 2014)

20.49.090 Modification and Collocation of Existing Telecom Facilities.

Notwithstanding any provision in this chapter, a request to modify an existing facility that involves the collocation of new transmission equipment, the removal of existing transmission equipment, or the replacement of existing transmission equipment shall be subject to administrative review and approval of a ZC without processing any discretionary permit provided that such modification does not substantially change the existing facility from the original permit for the facility. A substantial change means a single change, or series of changes over time, that exceeds five percent of the physical dimensions of the original approved telecom facility, or as otherwise defined by applicable provisions of State or Federal law.

Each application submitted under this section for a modification or collocation to an existing telecom facility shall be accompanied by:

A.    A detailed description of the proposed modifications to the existing telecom facility(ies);

B.    A photograph or description of the telecom facility as originally constructed, if available; a current photograph of the existing facility; and, a graphic depiction of the facility after modification showing all relevant dimensions;

C.    A detailed description of all construction that will be performed in connection with the proposed modification; and

D.    A written statement signed and stamped by a professional engineer, licensed and qualified in California, attesting that the proposed modifications do not constitute a substantial change of the existing permitted facility.

Any permit issued will be conditioned upon the accuracy of the application, and may be revoked, and the telecom facility shall be removed and restored to its pre-modification condition if any material statement made with respect to the facility application is false or the modifications as actually made would have required a discretionary review had the plan for the facility accurately depicted the modifications. (Ord. 2014-1 § 10 (part), 2014)

20.49.100 Operational and Radio Frequency Compliance and Emissions Report.

At all times, the operator shall ensure that its telecom facilities comply with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The operator shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. Said information shall be made available by the operator upon request at the discretion of the Community Development Director.

Upon the request, and at the discretion of, the Community Development Director, a radio frequency (RF) compliance and emissions report shall be prepared by a qualified RF engineer acceptable to the City and submitted. The RF compliance and emissions report must demonstrate that the facility is operating at the approved frequency and complies with FCC standards for radio frequency emissions safety as defined in 47 C.F.R. Section 1.1307 et seq. Such report shall be based on actual field transmission measurements of the facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the facility does not comply with the FCC’s “General Population/Uncontrolled Exposure” standard as defined in 47 C.F.R. Section 1.1310 Note 2 to Table 1, the Director shall require use of the facility be suspended until a new report has been submitted confirming such compliance. (Ord. 2014-1 § 10 (part), 2014)

20.49.110 Right to Review, Revoke or Modify a Permit.

The reservation of right to review any permit for a telecom facility granted by the City is in addition to, and not in lieu of, the right of the City to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit. (Ord. 2014-1 § 10 (part), 2014)

20.49.120 Removal of Telecom Facilities.

A.    Discontinued Use. Any telecom operator who intends to abandon or discontinue use of a telecom facility must notify the Community Development Director by certified mail no less than thirty (30) days prior to such abandonment or discontinuance of use. The telecom operator or owner of the affected real property shall have ninety (90) days from the date of abandonment or discontinuance, or a reasonable additional time as may be approved by the Community Development Director, within which to complete one of the following actions:

1.    Reactivate use of the telecom facility.

2.    Transfer the rights to use the telecom facility to another telecom operator and the telecom operator commences use within a reasonable period of time as determined by the Community Development Director.

3.    Remove the telecom facility and restore the site.

B.    Abandonment. Any telecom facility that is not operated for transmission and/or reception for a continuous period of ninety (90) days or whose telecom operator did not remove the facility in accordance with subsection (A) of this section shall be deemed abandoned. Upon a finding of abandonment, the City shall provide notice to the telecom operator last known to use such facility and, if applicable, the owner of the affected real property, providing thirty (30) days from the date of the abandonment notice within which to complete one of the following actions:

1.    Reactivate use of the telecom facility.

2.    Transfer the rights to use the telecom facility to another telecom operator who has agreed to reactivate the facility within thirty (30) days of the transfer.

3.    Remove the telecom facility and restore the site.

C.    Removal by City.

1.    The City may remove an abandoned telecom facility, repair any and all damage to the premises caused by such removal, and otherwise restore the premises as is appropriate to be in compliance with applicable codes at any time after thirty (30) days following the notice of abandonment.

2.    If the City removes an abandoned telecom facility, the City may, but shall not be required to, store the removed facility or any part thereof. The owner of the premises upon which the abandoned facility was located and all prior operators of the facility shall be jointly liable for the entire cost of such removal, repair, restoration and storage, and shall remit payment to the City promptly after demand therefor is made. In addition, the City Council, at its option, may utilize any financial security required in conjunction with granting the telecom permit as reimbursement for such costs. Also, in lieu of storing the removed facility, the City may convert it to the City’s use, sell it, or dispose of it in any manner deemed by the City to be appropriate.

D.    City Lien on Property. Until the cost of removal, repair, restoration, and storage is paid in full, a lien shall be placed on the abandoned personal property and any real property on which the telecom facility was located for the full amount of all costs incurred by the City for the removal, repair, restoration and storage. The City Clerk shall cause the lien to be recorded with the Orange County Recorder, with the costs of filing, processing, and release of such City lien being added to the other costs listed in this subsection. (Ord. 2014-1 § 10 (part), 2014)