Chapter 17.56
WIRELESS COMMUNICATION FACILITIES

Sections:

17.56.010    Purpose.

17.56.020    Definitions.

17.56.030    Permits required.

17.56.040    Approval authority.

17.56.050    Appeal from Director decision.

17.56.060    Application requirements.

17.56.070    Findings.

17.56.080    Objective standards and operating conditions.

17.56.090    Objective siting requirements.

17.56.100    Large wireless communication facilities.

17.56.110    Preemption and severability.

17.56.120    Reservation of rights to review permit.

17.56.010 Purpose.

This chapter establishes a wireless communication facility permit, and sets forth definitions, permitting requirements and application processes for wireless communication facilities within the public right-of-way in the City, including reasonable, uniform and objective aesthetic standards. (Ord. 829 § 2, 2019)

17.56.020 Definitions.

A. “Applicant” means the entity applying for the wireless communication facility permit, and any of its future lessees or assigns. Should the applicant later sell a wireless communication facility constructed pursuant to a permit issued under this chapter, the term “applicant” shall apply to that subsequent owner.

B. “Batch wireless communication facility application” means an application for multiple wireless communication facilities at multiple locations, or multiple applications for separate facilities at multiple locations submitted at once.

C. “Director of Development Services” means the City’s Director of Development Services, or his/her appointed designee.

D. “Existing support structure” means a structure, such as a street light, that is existing prior to the City’s receipt of an application for a wireless communication facility permit, that will not have to be replaced or substantially modified to support the installation of a wireless communication facility. Notwithstanding the foregoing, in-kind replacement structures are considered existing support structures for the purposes of this chapter. Existing overhead utility poles or lines are not permitted existing support structures.

E. “In-kind replacement structure” means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed to support the other parts of the wireless communication facility, and is identical to the existing vertical infrastructure it replaces with respect to size, height, diameter, style, and exterior materials.

F. “Master communication site license agreement” means an agreement between the applicant and the City, approved by the City Council in accordance with Chapter 17.53 PMC, and all supporting and related documentation, including but not limited to insurance certificates and lease terms. Full cost recovery for staff time and direct costs associated with the agreement shall be part of a developer deposit, as set forth in the City’s master fee schedule, as updated and amended from time to time.

G. “New support structure” means a structure that is constructed solely to support the other parts of the wireless communication facility.

H. “Replacement support structure” means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed solely to support the other parts of the wireless communication facility, except for in-kind replacement structures.

I. “Single wireless communication facility application” means an application for a single wireless communication facility at a single location.

J. “Street light” means a light illuminating a road, mounted on a tall pole and within the public right-of-way. The term “street light” excludes overhead utility poles and lines.

K. “Support structure” means either an existing support structure, new support structure, or replacement support structure, which are all considered part of a wireless communication facility.

L. “Wireless communication facility” means a facility for the provision of wireless communications or other similar utility services, and all antennas and equipment associated with the overall facility that are necessary for the function of the facility, including the support structure. (Ord. 829 § 2, 2019)

17.56.030 Permits required.

A. Prior to the construction or installation of any wireless communication facility in the public right-of-way, the applicant shall obtain a wireless communication facility permit pursuant to the procedures, requirements and restrictions of this chapter, in addition to a review for structural calculations and public right-of-way permit application pursuant to the requirements set forth in PMC 12.04.030. An improvement plan and inspection is required for a new support structure or a replacement support structure. Approval of a master communication site license agreement is required prior to approval of any batch wireless communication facility application.

B. Pursuant to PMC 17.52.050(A), any wireless communication facility that includes a surface-mounted cabinet with any dimension greater than 36 inches, or where more than one cabinet of any size is located closer than 100 feet to another cabinet of any size, shall also obtain a minor development review permit from the Director of Development Services, unless the cabinet(s) are placed underground.

C. Nothing in this chapter affects the City’s authority to require a conditional use permit pursuant to Chapter 17.48 PMC for a proposed wireless communication facility outside of the public right-of-way. (Ord. 829 § 2, 2019)

17.56.040 Approval authority.

The Director of Development Services shall be the approval body for all wireless communication facility permits. (Ord. 829 § 2, 2019)

17.56.050 Appeal from Director decision.

A. Only an applicant may appeal a decision of the Director of Development Services regarding a wireless communication facility permit request. In such case, the appeal shall go before the hearing officer for review and action in accordance with the appeal procedures set forth in Chapter 2.20 PMC.

B. A decision of the hearing officer under Chapter 2.20 PMC is final. (Ord. 829 § 2, 2019)

17.56.060 Application requirements.

A. Before receiving a wireless communication facility permit, the applicant must submit an application in accordance with the requirements of this chapter.

B. The applicant shall comply with the City’s “Guidelines for the Placement of Utility Facilities in the Public Rights-of-Way,” as may be amended from time to time by City Council resolution.

C. Before submitting an application, all applicants are advised and strongly urged to participate in a wholly voluntary pre-application meeting with appropriate staff, scheduled in advance.

D. All applications for wireless communication facility permits shall include the following information:

1. A completed Planning Division general application. This form may be updated by the Director of Development Services from time to time, in his/her reasonable discretion. At a minimum, the following application materials shall be required:

a. A draft master communication site license agreement, if applicable.

b. Detailed plans, including a site plan and elevation plans, showing and describing the layout and design of the proposed project, including a depiction of the boundaries of the site on which the project will be developed.

c. Documentation that the facility will comply with all Federal and State regulations and guidelines, including, where applicable, FCC regulations and guidelines.

d. Site justification letter(s) justifying the need or requirement for the proposed location and design of the wireless communication facility, and whether or not co-location of additional facilities owned by different carriers is feasible, in compliance with PMC 17.56.090. The letter shall include other sites that were analyzed but not selected, with an explanation as to why the analyzed sites did not meet the objectives (including engineering, coverage and location justification), and why the co-location of the proposed wireless communication facility with others in the area cannot be accomplished.

e. A utility plan showing equipment layout and utility connections.

f. A report specifying the facility’s compliance with the FCC’s maximum possible exposure (MPE) levels in inhabited areas within 500 feet of the facility prepared by a qualified electrical engineer licensed by the State of California. Proof of compliance shall be a certification provided by the engineer who prepared the original based upon measurements after the facility is in operation, but prior to City final engineering inspection.

g. Mechanical engineering specifications of the facilities specifying maximum noise exposure levels of the facility to be in compliance with the City’s noise ordinance, set forth in Chapter 8.08 PMC.

h. Where the wireless communication facility also requires a minor development review permit pursuant to PMC 17.52.050, the application shall include documents required for minor development reviews and applicable fees and deposits.

2. Payment of all deposits or fees as required for processing of the associated permits as outlined in the City’s master fee schedule, as may be amended from time to time.

E. The applicant shall agree in writing to indemnify, defend and hold harmless the City, its designees, employees, and assigns, from any and all liability resulting from the City’s approval of the wireless communication facility, the operation of the wireless communication facility, and/or the City’s enforcement of this chapter as it relates to any wireless communication facility owned and/or operated by the applicant.

F. The applicant shall submit a security in accordance with Chapter 16.20 PMC in an amount to be determined by the City Engineer to cover the removal of the facility in the event the site becomes abandoned or is otherwise vacated by the applicant.

G. When submitting a batch wireless communication facility application, the applicant shall submit separate materials as specified in subsections (D)(1)(b) through (h) of this section for each facility that is a part of the application. A separate fee is required for each facility, as applicable. If some of the facilities require a minor development review permit and others do not, the City will process the facilities requiring minor development review each as a separate application. (Ord. 829 § 2, 2019)

17.56.070 Findings.

A. Prior to issuance of a wireless communication facility permit pursuant to this chapter, the following findings shall be made to the satisfaction of the Director of Development Services:

1. A complete application has been submitted to the satisfaction of the Development Services Director as required by this chapter.

2. The proposed wireless communication facility and applicant satisfies the requirements set forth in this chapter, specifically including PMC 17.56.080 and 17.56.090.

3. The proposed wireless communication facility satisfies the requirements set forth in the City’s wireless communication policy, to the extent applicable, as may be amended by the City Council from time to time.

4. The proposed wireless communication facility is not detrimental to the public health, safety, or general welfare.

5. The proposed wireless communication facility is designed to match existing street infrastructure within the surrounding area, and conceals or minimizes visual impacts of the facilities.

6. Opportunities for co-location were maximized as a part of the project.

7. The proposed wireless communication facility is proposed to function in compliance with all applicable Federal, State and local regulations, including (where applicable) regulations of the Federal Communications Commission.

8. The applicant has paid all necessary City fees and deposits associated with the application, and the proposed wireless communication facility.

B. Where the Director of Development Services issues a wireless communication facility permit, the approval shall be conditioned on a requirement that the applicant comply with all of the standards, conditions and other requirements articulated in this chapter on an ongoing basis.

C. If the Director of Development Services, or on appeal, the hearing officer, cannot make the required findings, the approval authority shall deny the permit with a written explanation as to why any such finding could not be made. (Ord. 829 § 2, 2019)

17.56.080 Objective standards and operating conditions.

A. The support structure, including all added antennas, shall not be more than 50 feet in height or 10 percent taller than other adjacent vertical infrastructure. The wireless communication facility must not extend the height of an existing support structure by more than five feet.

B. The wireless communication facilities shall be architecturally integrated with support structures and screened from view to the largest extent feasible. The wireless communication facilities shall consist of the smallest, least visually intrusive antennas, components and other necessary equipment available. No portion of a wireless communication facility placed on a street light shall be more than five feet above the light pole portion of the street light. Each portion of the wireless communication facility shall be designed at a diameter proportionately similar to, and no more than three times diameter of, the existing support structure. Associated equipment shall not be ground mounted, but instead, placed underground, unless the Director of Development Services determines that no other feasible alternative exists based on clear and convincing evidence provided by the applicant.

C. Antennas and equipment shall be painted to match the color of the surface of the support structure to which they are attached unless determined otherwise by the Director of Development Services.

D. No portion of a wireless communication facility is permitted to obstruct the view of any traffic sign, way-finding sign, traffic signal, or similar facility, nor be located within the sight triangle as shown in PMC 17.22.100.

E. The fire hydrant port that runs perpendicular to the street center line must remain unobstructed.

F. The wireless communication facility must not be designed in such a way that it requires antenna structure registration under Part 17 of Title 47 of the Code of Federal Regulations.

G. Each facility shall include emergency contact information visible from the sidewalk with the wireless carrier, the frequency band, a single point of contact in the applicant’s engineering and maintenance departments (name, phone number, fax number, and email address), and a 24-hour phone number to which interference problems may be reported.

H. The antennas shall be activated and energized upon preliminary approval of the wireless communication facility by the Director of Development Services to allow for proof of compliance certification provided by the engineer who prepared the original MPE report based upon measurements after the facility is in operation, but prior to the City’s final engineering inspection.

I. All wireless communication facilities and related equipment and improvements shall be maintained in good repair. Any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight.

J. The owner or operator of a wireless communication facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in the permit.

K. Any substantial modification, removal or relocation of a wireless communication facility shall require submittal, review, and approval of a wireless communication facility permit pursuant to this chapter to the satisfaction of the Director of Development Services.

L. The owner or operator of a wireless communication facility shall remove, at its sole responsibility and expense, all portions a wireless communication facility and restore the existing support structure to its original condition, subject to approval of the Director of Development Services, within 60 days of ceasing operation of the permitted wireless communication facility.

M. The owner or operator of a wireless communication facility shall be required to modify, remove, or relocate its facility, or portion thereof, without cost or expense to the City, within 60 days of the City’s notice, if and when made necessary, in the City’s discretion, by:

1. Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric, or other utility systems or pipes owned by the City or any other public agency;

2. Any abandonment of any street, sidewalk, or other public facility;

3. Any change of grade, alignment or width of any street, sidewalk, or other public facility; or

4. A determination by the Director of Development Services that the wireless communication facility has become a risk to public health, safety, welfare, or the public’s use of the public right-of-way.

N. In the case of an emergency or other similar exigent circumstances where the facility poses a threat of bodily harm, death, or harm to real property, or otherwise creates a safety hazard, the City may modify, remove, or relocate a wireless communication facility without prior notice to the applicant provided the applicant is notified within 30 days thereafter. The City shall make a reasonable attempt to contact the applicant prior to such emergency removal. (Ord. 829 § 2, 2019)

17.56.090 Objective siting requirements.

A. In furtherance of the City’s goals to underground existing utilities throughout the City, wireless communication facilities shall not be located on existing overhead utility poles or lines, as set forth in PMC 17.56.020(D).

B. The applicant must make all commercially reasonable efforts to co-locate wireless communication facilities on existing support structures that already support other wireless communication facilities. If such co-location is not feasible, the applicant must provide the documentation required by PMC 17.56.060(D). In the event co-location is not feasible, the applicant must design the wireless communication facility in such a way that co-location of at least one additional wireless communication facility is feasible on the same support structure in the future.

C. The preferred support structure for all wireless communication facilities is existing street lights, or other qualified existing support structures. The applicant must make all commercially reasonable efforts to utilize a street light or other qualified existing support structure. If a new or replacement support structure is required, the applicant must provide the documentation required by PMC 17.56.060(D) demonstrating the same to the satisfaction of the Director of Development Services. Further, the applicant must explore and document the infeasibility of a replacement support structure before a wireless communication facility requiring a new support structure will be approved.

D. Required Setbacks for New Support Structures, Replacement Support Structures and Equipment and Accessory Structures Associated with a Wireless Communication Facility.

1. All portions of a wireless communication facility must be set back a minimum of 48 inches from any traffic signal facilities.

2. The setback for all portions of a wireless communication facility from any tree shall be a minimum of 48 inches, unless a qualified arborist can demonstrate to the satisfaction of the Director of Development Services that a lesser setback would not harm the tree.

3. A minimum of four feet of pedestrian clearance from any portion of a wireless communication facility, free of all obstacles for an unobstructed walkway, must be maintained at all times.

4. All portions of a wireless communication facility must be set back a minimum of seven feet from any fire hydrant, driveway, curb ramp or blue zone parking space.

5. Replacement support structures shall be located a maximum of five feet from the structure they replace. However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, this distance can be expanded to no more than 10 feet.

6. All new support structures and replacement support structures shall provide the same setbacks as adjacent structures of a similar style. However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, the setback can be modified, provided the facility otherwise complies with setback regulations set forth in this subsection D and all pertinent laws and regulations, including, but not limited to, the Americans with Disabilities Act.

7. Any new support structure must be located a minimum of 50 feet away from any residential structure, and shall not be located along the street frontage adjacent to any school, daycare center, recreational area or park. New support structures may not be located within 75 feet of any pre-existing vertical infrastructure exceeding 10 feet in height or any preexisting wireless communication facility, as measured along a horizontal line between the closest points of the subject piece of infrastructure and closest portion of the proposed wireless communication facility. (Ord. 829 § 2, 2019)

17.56.100 Large wireless communication facilities.

The Director of Development Services may, in his or her discretion, impose additional requirements and restrictions on wireless communication facilities where the antenna exceeds three cubic feet in volume, where all other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, exceeds 28 cubic feet in volume, or otherwise do not meet the definition of “small wireless facility” set forth in applicable Federal regulations. (Ord. 829 § 2, 2019)

17.56.110 Preemption and severability.

Notwithstanding any other provision of this chapter to the contrary, an applicant may request an exemption to excuse it from having to comply with any portion of this chapter on the grounds that the requirement or action taken by the City would violate State or Federal law. The City shall grant the exemption or excuse an applicant from compliance with all or a portion of this chapter, if it finds based on substantial evidence in the record that the challenged requirement or action is, in fact, preempted by State or Federal law. Such an exemption shall not affect the enforceability of the remainder of this chapter. If any provision of this chapter is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this chapter, which shall be enforced to the fullest extent possible. (Ord. 829 § 2, 2019)

17.56.120 Reservation of rights to review permit.

The City reserves the right to reconsider the permit at the end of a 10-year time period from the date of the original permit approval. Reconsideration items to be reviewed may include, but are not limited to, conformance with all objective standards, availability of new technologies, conformance with the objective concealment standards imposed on the facility, operation of applicable radio frequency standards and regulations (as they may be amended from time to time), and compliance with Federal, State and local regulations, including the City’s noise ordinance. (Ord. 829 § 2, 2019)