(A) Prohibited on roadway of public street. No person shall install, use or maintain any telecommunications facility which projects onto, in or over any part of the roadway of any public street or which rests, wholly or in part, upon, along or over any portion of the roadway of any public street.
(B) Dangerous condition or obstruction. No person shall install, use or maintain any telecommunications facility which in whole or in part rests upon, in or over any public sidewalk or parkway, 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 telecommunications facility unreasonably interferes with or 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.
(C) Permit required.
(1) No person shall install or maintain any telecommunications facility which in whole or in part rests upon, in or over the public right-of-way without first obtaining a permit from the Community Development Director herein after referred to as “Director") under § 23.84.230.
(2) Applications for permits for telecommunications facilities shall be made to the Director and shall contain the following:
(a) The name, address and telephone number of the owner of the telecommunications facility;
(b) The name, address and telephone number of the responsible person whom the city may notify or contact at any time concerning the telecommunications facility;
(c) A site plan containing the exact proposed location of the facility (including a description of the location in a format compatible with the city’s geographic information system database), and detailed plans created by a qualified licensed engineer and in accordance with requirements set by the Director;
(d) A photograph and/or model number of the type of telecommunications facility being used;
(e) A hold harmless agreement pursuant to § 23.84.230(L);
(f) A certificate of insurance pursuant to § 23.84.230(M);
(g) Agreement to conform to the requirements of § 23.84.230; and
(h) An application and processing fee, as established by resolution of the City Council.
(3) Applications will not be accepted for geographic locations which are then unavailable due to current or proposed public improvements as specified in the current Capital Improvement Program.
(4) This permit requirement does not apply to the terms and conditions of any agreement or permit (or extension thereof) pertaining to telecommunications facilities (issued by the city or of which the city is a party) that is already in existence at the effective date of this section, provided that the agreement or permit (or extension thereof) does not result in a material change (including, but not limited to, changes in size, shape, color, or exterior material) of the telecommunications facilities covered by such existing agreement.
(D) Findings required for all telecommunications facilities. No permit shall be granted unless the following findings can be made by the Director:
(1) The proposed use is allowed in the public right-of-way and complies with all applicable provisions of this chapter.
(2) Prior to the installation of any telecommunications facility, the applicant has demonstrated that the installation will not interfere with the use of the public right-of-way and existing subterranean infrastructure.
(3) The applicant has coordinated the final siting location of the telecommunications facility with the Director.
(4) All notification requirements for the proposed telecommunications facility have been met.
(E) Additional findings required for wireless telecommunications facilities. No permit shall be granted for any wireless telecommunications facility if the following additional findings cannot be made by the Director:
(1) The applicant has demonstrated, by way of a justification study, the rationale for selecting the proposed use, a detailed explanation of the coverage gap that the proposed use would serve, and how the proposed use is the least intrusive means for the applicant to provide wireless service.
(2) The applicant has posted a performance bond or other security in an amount rationally related to the cost of removal.
(3) The wireless telecommunications facility will not result in levels of radio frequency emissions that exceed Federal Communications Commission standards, including, but not limited to, FCC Office of Engineering Technology (OET) Bulletin 65, Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields, as amended. Additionally, if the Director determines the wireless telecommunications facility, as constructed, may emit radio frequency emissions that are likely to exceed Federal Communications Commission uncontrolled/general population standards in the FCC Office of Engineering Technology (OET) Bulletin 65, Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields, as amended, in areas accessible by the general population, the Director may require post-installation testing to determine whether to require further mitigation of radio frequency emissions. Applications for amateur radio antennas or antennas installed for home entertainment purposes are exempt from this requirement.
(F) Special notice.
(1) Notice of application submittal.
(a) Residential Districts. Notice that the application has been submitted shall be provided pursuant to § 23.76.030 of the Alhambra Municipal Code.
(2) Notice of installation. After issuance of a permit, and no later than 48 hours prior to installation, written notice shall be provided to the same persons who originally received notice pursuant to § 23.84.230(F).
(G) Time for decision.
(1) A permit for a telecommunications facility that provides video services for a holder of a statewide video franchise shall be granted, denied or granted conditionally by the Director no later than 60 days after receiving a completed application.
(2) A permit for all other telecommunications facilities shall be granted, denied or granted conditionally by the Director within a reasonable time after receiving a completed application.
(3) If the Director denies an application, the Director shall, at the time of notifying the applicant of the denial, furnish to the applicant a detailed explanation of the reason for the denial.
(H) Appeals. Any interested person may appeal the decision of the Director pursuant to § 23.84.230 to the Planning Commission. The appeal shall be filed with the City Clerk within 14 days after the decision by the Director from which the appeal is being taken.
(I) Installation standards applicable to all telecommunications facilities. A permit for telecommunications facilities within the public right-of-way shall comply with the following installation standards:
(1) The telecommunications facility shall be colored to blend with other streetscape or surrounding features to the extent feasible.
(2) In the event the parkway and/or roadway, where approved, adjacent the applicant’s telecommunications facility disturbed or altered in the process of installation, the applicant shall restore the parkway to the condition in which it existed prior to installation.
(3) No modifications to above-ground or at-grade telecommunications facility, including those related to size, color, and shape of the housing, may be made by the applicant without first having obtained approval from the Director.
(4) Where feasible, as new technology becomes available, the applicant shall place an existing or proposed above-ground telecommunications facility below ground.
(5) There shall be no more than one above-ground telecommunications facility per each residential frontage.
(6) In residential districts where a telecommunications facility is proposed adjacent to a corner lot, the facility shall be located along the side yard and not on the primary frontage of a residence, if feasible.
(7) To the extent feasible, the area surrounding the telecommunications facility shall be maintained with landscaping or alternate screening. The landscaping shall be irrigated and of a sufficient height and density to screen the facility from the public sidewalk and parkway.
(8) The applicant shall obtain the Director’s approval of a tree protection plan prepared by a certified arborist for the installation of any telecommunications facility located within the canopy of a street tree, or a protected tree on private property, or within a minimum of a ten-foot radius of the base of such a tree. Depending on site specific criteria (e.g., location of tree, size and type of tree, etc.), a radius greater than ten feet may be required by the Director.
(9) All equipment and facilities installed shall comply with the Americans with Disabilities Act for proper clearance distances.
(10) No telecommunications facility may be illuminated unless specifically required by the Federal Aviation Administration or other governmental agencies.
(11) At the discretion of the Director, the applicant may be required to provide an authorization to permit the city to hire an independent, qualified consultant to evaluate any technical aspect of a proposed wireless telecommunications facility, including, but not limited to, issues involving radio frequency emissions, alternative designs, and alternative sites. Any authorization for this purpose shall include a deposit to cover all reasonable costs associated with the consultation. Any proprietary information disclosed to the city or the consultant is deemed not to be a public record, and shall remain confidential and not to be disclosed to any third party without the express consent of the applicant, unless otherwise required by law.
(J) Additional installation standards applicable to wireless telecommunications facilities.
(1) No support structures are permitted in the public right-of-way.
(2) No wireless telecommunications facility shall be located on a pole that is less than 25 feet in height.
(3) An antenna array shall be collocated and shall not extend over seven feet beyond the top of the pole.
(4) When feasible, panel antennas shall utilize brackets that allow no more than a four-inch extension from the pole. Panel antennas shall not exceed the height of the pole.
(5) All permits for wireless telecommunications facilities shall be valid for no less than ten years. The Director may administratively extend the term of the permit for subsequent ten-year terms upon verification of continued compliance with the findings and conditions of approval under which the application was originally approved, as well as any other provisions provided for in the Municipal Code which are in effect at the time of permit renewal.
(6) If an applicant proposes to replace a pole in order to accommodate their telecommunications facility, the pole shall match the appearance of the original pole to the extent feasible and shall be approved by the Director.
(7) No new poles may be installed except as replacements for existing poles unless the applicant demonstrates that no other feasible options exist.
(K) Maintenance standards. The following standards are applicable to all telecommunications facilities subject to § 23.84.230:
(1) The applicant shall provide on-going maintenance of its telecommunications facilities, including ensuring the facilities are reasonably free of:
(a) General dirt and grease;
(b) Chipped, faded, peeling, and cracked paint, or on all visible painted areas;
(c) Rust and corrosion on all visible unpainted metal areas;
(d) Cracks, dents, blemishes, and discoloration;
(e) Graffiti, bills, stickers, advertisements, etc.; and
(f) Broken and misshapen structural parts.
(2) If an applicant discontinues use or abandons any telecommunications facilities, the applicant shall (1) immediately notify the Director; (2) remove the equipment and restore the site to the previous condition within 90 days of notification to the Director and in a manner approved by the Director. The telecommunications facilities shall be maintained such that they comply at all times with the noise and vibrations control regulations, set forth in Chapter 18.02 of the Alhambra Municipal Code.
(3) All ground-mounted, at-grade, and above-ground telecommunications facilities shall be properly maintained in accordance with the following procedures:
(a) All necessary repairs, including graffiti removal, shall be completed by the applicant within 48 hours after discovery of the need for such repairs or in receiving notification from a resident or the Director.
(b) The applicant shall provide routine maintenance within ten working days after receiving notification from a resident or the Director.
(c) The applicant shall replace ground-mounted, at-grade, and above-ground telecommunications facilities, in kind, if routine or emergency maintenance is not sufficient to return the equipment to the condition at the time of installation.
(L) Hold harmless agreement. A condition of issuance of a permit is that every permittee, and person an a shared permit, agrees to defend, indemnify, and hold harmless the City of Alhambra, its City Council, officers, and employees to the
maximum extent permitted by law, from any loss or liability or damage, including expenses and costs, for bodily or personal injury, and for property damage sustained by any person as a result of the installation, use, or maintenance of the applicant’s facilities.
(M) Insurance required. A condition of issuance of a permit is that every permittee agrees to maintain a policy of public liability insurance, naming the city as an additional insured, in an amount that meets or exceeds the minimum levels and standards of liability insurance and claims reserve, established by the Director.
(N) Summary removal. In the event the Director determines that the condition or placement of a telecommunications facility constitutes a dangerous condition or obstruction, as defined in § 23.84.230(B) of the Alhambra Municipal Code, or that a telecommunications facility has been placed in the public right-of-way without a permit, the Director may cause the facility to be removed summarily and without a hearing. An administrative citation shall be served upon the person who owns the facility within two business days of removal in the manner set forth in Chapter 1.13 of the Alhambra Municipal Code, and if the owner cannot be identified, the telecommunications facility shall be treated as abandoned property.
(O) Removal of facility for public purpose. When the Director determines that it is necessary to remove a telecommunications facility for the construction or installation of public improvements, an order to comply pursuant to § 1.13.050 of the Alhambra Municipal Code may be issued for the purpose of suspending or terminating the permit. The person who holds the permit for the telecommunications facility shall be entitled, on permittee’s election, to either a pro-rata refund of fees or to a new permit, without additional fee, in the original location or as close to the original location as the standards set forth in § 23.84.230 allow.
(P) Additional conditions of approval for wireless telecommunications facilities collocated on primary use owned by the city. Any wireless telecommunications facility permitted to be collocated on a primary use that is owned by the city shall comply with all of the following additional conditions:
(1) Construction.
(a) Permittee shall perform all work within, around, or on the primary use in accordance with plans furnished to and approved by the Director, in a manner acceptable to the Director.
(b) Permittee shall, at its sole cost and expense, shall undertake and diligently perform to completion the installation of its facilities.
(c) In connection with permittee’s installation or maintenance of its facilities, the permittee shall agree to:
1. Repair any damage caused by permittee to any building, public facility, utility facility, or other improvement in, on, or under any portion of the primary use;
2. Perform all work required or permitted hereby: (i) in a manner so as to cause minimal inconvenience or undue interference with vehicular traffic and property owners located adjacent to the primary use; (ii) at such times and in such manner as may be reasonably requested or approved by the Director; and (iii) only with all necessary or appropriate provisions for the safety and convenience of all persons potentially affected thereby; and
3. Replace and/or restore any area (regardless of whether located on the primary use or not) affected by permitee’s work or other acts pursuant hereto at least as good a condition as such areas were in prior to commencement of such work, reasonable wear and tear and casualty beyond permittee’s control expected.
(2) As-built drawing. Permitee shall submit an “as-built” drawing within 90 days after installation of the facilities as well as a photo of the installed facility.
(3) Access. Permitee shall not place any facilities which will deny access to, or otherwise interfere with, any public utility, easement, or right-of-way located on the primary use site. Permittee agrees to allow the city reasonable access to, and maintenance of, all utilities and existing public improvements within or adjacent to the primary use site, including, but not limited to, pavement, trees, public utilities, lighting and public signage.
(4) Default. In addition to the remedies provided herein, or any applicable law, any person who violates any of these additional conditions may be subject to the administrative proceedings set forth in Chapter 1.13 of the Alhambra Municipal Code, including, but without limitation, civil penalties, late payment penalties, administrative fees, and other related charges.
(5) License fee.
(a) A wireless telecommunications antenna facility subject to § 23.84.230 and that is collocated on city-owned property will be subject to an annual license fee, set by City Council resolution no later than the time of issuance of the permit. The first annual license fee shall be paid no later than 15 days after installation of the wireless telecommunications antenna facility. Thereafter, permittee shall make an annual license fee payment on each July 1.
(b) If the permit is revoked or terminated for any reason other than a default by permittee, the city shall refund to permittee the unused portion of the annual license fee that was paid by permittee for the year in which such termination occurs.
(c) Commencing each July 1 following installation of the wireless telecommunications antenna facility, and thereafter on each July 1, the annual license fee will be automatically increased by multiplying the annual license fee for the preceding year by 3.5%.
(d) If permittee fails to pay the annual license fee within ten days after permittee receives notice of its failure to pay the license fee as of the due date, the past-due license fee will bear interest from the date due until paid at the lesser of (i) 12% per annum; or (2) the maximum rate permitted by law, if the 12% rate exceeds that maximum.
(e) Permittee shall agree that the license fee is the right to locate its wireless telecommunications antenna facility upon the city-owned primary use and is in no way intended to be an abrogation or diminishment of any rights that may exist for permittee under Cal. Pub. Util. Code §§ 7901 and 7901.1.
(6) Relocation. If, at any time, the Director determines, at his or her sole and absolute discretion, that the primary use needs to be removed, relocated, or realigned due to a public improvement project, permittee shall agree, within 180 days after receipt of written notice from the Director, forthwith and diligently take all necessary action in the determination of the Director to remove, relocate, and/or realign, as the case may be, its wireless telecommunications antenna facility at the sole cost and expense of permittee. Relocation and/or realignment of the wireless telecommunications antenna facility shall be determined at the discretion of the Director.
(7) Assumption of risk.
(a) Permittee agrees to inspect the primary use prior to installing its wireless telecommunications antenna facility. Permittee shall exercise its rights under its permit at its own risk and expense, assuming full responsibility for all risks incidental to the use of its wireless telecommunications antenna facility on the primary use thereon.
(b) Permittee agrees that the city assumes no responsibility whatsoever for the safe condition, security, or maintenance of the wireless telecommunications antenna facility on the primary use, or for the protection of persons and property therein, as all such responsibility shall solely be permittee’s.
(c) Permittee agrees that the city assumes no responsibility whatsoever for any damage caused, directly or indirectly, on the primary use by permittee’s installation of the wireless telecommunications antenna facility, as all such responsibility shall solely be permittee’s.
(d) Permittee agrees that the city does not have requisite information to determine the exact location, size, type, and depth of all utility facilities crossing through or aligned with the area used by the permit. Permittee assumes the risk that adverse physical conditions or the applicability and effect of the operative or the applicability and effect of the operative or proposed laws or regulations applicable to the area of permittee’s wireless telecommunications antenna facility may not have been revealed by the city’s investigation. To the maximum extent permitted by law, permittee waives its right to recover from the city, its members, officers, employees, and agents, any and all damages, losses, liabilities, costs, or expenses whatsoever (including attorney’s fees and costs) and claims therefore, whether direct or indirect, known or unknown, foreseen or unforeseen, which may arise on account of, in any way growing out of, or connected with the permittee’s use of the land subject to the permit or any law or regulation applicable thereto, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Clean Water Act (33 U.S.C. Section 466 et seq.), the Safe Drinking Water Act (14 U.S.C. Sections 1401-1450), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Toxic Substance Control Act (15 U.S.C. Sections 2601-2629), the California Hazardous Waste Control Law (Cal. Health and Safety Code §§ 25100 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Health and Safety Code §§ 13000 et seq.), the Hazardous Substance Account Act (Cal. Health and Safety Code §§ 25300 et seq.), and the Safe Drinking Water and Toxic Enforcement Act (Cal. Health and Safety Code §§ 25249.5 et seq.).
(8) Removal and restoration.
(a) Upon the expiration or termination of the permit, permittee agrees to peacefully remove its wireless telecommunications antenna facility including, but not limited to, vacating the primary use and leaving it in as good condition as on the date of installation, except for reasonable wear and tear damage not caused by permittee. If permittee fails to promptly remove its wireless telecommunications antenna facility within 30 days after expiration or earlier termination of the permit, the city may, after 15 days prior written notice to permittee, remove the same. Any such removal shall be without any liability to the city or any damage to such wireless telecommunications antenna facility that may result from reasonable efforts of removal. Permittee shall pay the city upon demand all reasonable costs incurred by the city in removing such wireless telecommunications antenna facility, to the extent such costs exceed the amount of the removal bond posted. The city has no obligation to store such wireless telecommunications antenna facility, and permittee shall have no claim if the city destroys a wireless telecommunications antenna facility not removed by permittee.
(b) If permittee continues to have a wireless telecommunications antenna facility within the primary use after expiration or earlier termination of the permit, such holding over, unless otherwise agreed to by the Director in writing, shall constitute and be considered a tenancy at will. The monthly license fee for that tenancy shall be equal to 12.5% of the annual license fee paid during the preceding year and will be subject to all other terms of § 23.84.230, including the annual percentage increase.
(9) No estate. Permittee agrees that these conditions do not create or vest in permittee any estate in the primary use, but only the limited privileges of egress, entry, and use as described in these conditions and in the permit.
(10) Possessory interest tax. Permittee agrees that its interest by way of a permit may be subject to a possessory interest tax or property tax, and that such tax shall not reduce the annual license fee due the city hereunder, and any such tax shall be the liability of and be paid by permittee.
(11) Assignment. Permittee may assign or transfer a permit or any of the rights only with the approval of the Director, which consent shall not be unreasonably withheld or delayed.
(Q) Business license. A permit issued under § 23.84.230 shall not substitute for any business license otherwise required under the Alhambra Municipal Code.
(R) Remedies not exclusive. Remedies under § 23.84.230 are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive.
(S) Effect on other ordinances.
(1) Compliance with the provisions of § 23.84.230 will not relieve a person from complying with any other applicable provision of the Alhambra Municipal Code.
(2) In the event of a conflict between any provision in § 23.84.230 and Chapter 13.20 of this Code (Excavations), § 23.84.230 will control.
(3) Nothing contained in § 23.84.230 shall be deemed to supersede or modify the standards and size limitations (and exemptions thereon) for sign displays in Chapter 23.50 (Signs) of the Alhambra Municipal Code.
(Ord. 4674, passed 7-13-15; Am. Ord. 4691, passed 7-11-16; Am. Ord. 4735, passed 5-14-18)