A. A SWF permit must be obtained from the city before a SWF may be installed or maintained in the PROW. A standard City of Brea encroachment permit may also be required as a condition of SWF permit approval. A SWF permit is valid for ten (10) years provided. However, to ensure the greatest availability to other applicants of preferred locations for SWFs, installation of each SWF for which the permit is issued shall be completed within one (1) year of issuance. Upon a showing of good cause not based on fault of the permittee, the City Engineer may extend the time to complete the installation under a SWF permit, for an additional six (6) months. Upon a failure of a permittee to complete installation in the required period of time, the permit shall be deemed abandoned and the proposed SWF location shall be made available to other SWF applicants.
In the event that an application is deemed granted by rule of law or court decision, all conditions and design guidelines set forth in this chapter are still applicable to the installation.
An application for a permit to install a SWF shall be made in writing on such forms as the City Engineer prescribes, and shall comply with the following minimum requirements, in addition to all other information and documentation determined to be necessary by the City Engineer to effectuate the purpose and intent of this section. A review of an application for a SWF that complies in all respects with this chapter, shall be deemed an administrative review. Any proposed wireless facility not satisfying all requirements of this chapter for SWFs, or for any kind of facility that is not a SWF, shall be subject to discretionary review.
The application form shall specify the number, size and format of the project plans and application materials to be provided, including, but not limited to, electronic format. The City Engineer may waive certain submittal requirements or require additional information based on specific project factors. Unless an exemption or waiver applies, all applications shall include all of the following and will not be accepted if any submittal material is missing or not fully completed. An application shall not be deemed complete by the city unless all required information, submittals, and documentation has been submitted to the city as follows:
1. Complete application. A fully completed and executed city application form for the type of approval sought, and all information, materials, fees, attachments, submittals, and proof of insurance specified in the city-approved application form, must be submitted. Where the city determines that it requires expert assistance in evaluating an application, the city may hire a consultant and the fee charged by the consultant shall be reimbursed to the city by the applicant regardless of the outcome of the application.
2. Executed under penalty of perjury. All applications shall be signed under penalty of perjury under the laws of the State of California by an authorized representative of the applicant.
3. Applicant information. Complete legal name and contact information for the facility owner, facility operator, agent (if any), and property owner (for any collocation facility on any existing SWF), and related letter(s) of authorization if the owner is other than the city.
4. Detailed description of the SWF. A full written description of the proposed facility, its purpose, and specifications.
a. Fiber only. Applicants seeking to install a SWF shall not seek a ministerial permit to install fiber only and subsequently seek to install antennas and accessory equipment pursuant to a SWF permit. The applications for all installations in the PROW shall simultaneously request fiber installation or other cable installation when applying for a SWF permit.
b. Distributed antenna system. Applications for a SWF permit for a DAS shall be submitted as a single SWF application for the entire project. Each individual location within the system shall be processed and considered for approval separately. Permitting fees will be applied to each site. Each location will be evaluated and must comply with all design and development standards as defined by this chapter.
c. Utility pole attachments. For any SWF proposed to be collocated on a pole or structure owned by a public utility such as Southern California Edison, the application shall include written evidence of the utility's approval of applicant's proposed attachment including any and all applicable terms and conditions, and detailed description of the approved SWF. A SWF authorized by law and approved by the utility company for attachment to a utility owned pole or structure, shall be subject to all provisions of this chapter except to the extent any such provisions are preempted by State or Federal law related to utility pole attachments by wireless providers ("Pole Attachment Rules").
5. Inventory. An inventory list and map of the applicant's existing SWFs, including but not limited to collocations, operated by the applicant within two (2) miles of the proposed site ("service area"), and longer range conceptual plans for a period of five (5) years shall also be provided, if available. The inventory list must include specific information as to location, height, and design of each facility. The city may share such information with other applicants seeking to locate SWFs within the service area, in order to encourage collocation.
6. Geographic service area. A written description identifying the geographic service area for the subject installation, accompanied by a two (2)-year master plan of anticipated future installations and/or modifications, including maps.
7. Report on alternatives. A report explaining why the SWF is needed at the requested location, including a written statement explaining the rationale for selecting the proposed site; and how the proposed SWF is the least intrusive means for the applicant to provide wireless service in the proposed service. Said statement shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed SWF and why said alternatives are not a viable option. If the city has requested that the applicant collocate its SWF on a site, the applicant shall explain why collocation is not feasible, including efforts made to develop such an alternative.
8. SWF plans. Detailed engineering plans of the proposed SWF showing all equipment and antennas, including height, shape, size and nature of construction in accordance with the requirements established by the City Engineer. The plans shall include, but are not limited to, a fully dimensioned diagram of the proposed SWF and antennas, including height, diameter, design, shape, size, structural integrity, power output and frequency, back-up power source (if any), nature of construction, purpose of the facility, and technical engineering specifications, economic and other pertinent factors governing selection of the proposed design, together with evidence that demonstrates that the proposed facility has been designed to the minimum height and diameter required from a technological standpoint for the proposed site. The plans for any new free-standing structure must provide sufficient detail to demonstrate that the structure will be able to accommodate at least one (1) other similar telecommunications provider in addition to the applicant. The plans shall include a diagram showing the separation between the proposed SWF and any existing facility or facilities on the same support structure or site, if collocation is planned. In order to minimize visual impact of equipment boxes, every applicant seeking to collocate with another SWF shall utilize its best efforts to arrange with the existing SWF operator to share equipment enclosures. The collocating wireless provider shall provide a written description of its efforts made to share any equipment enclosure. If unable to achieve a sharing arrangement, the applicant's written description shall clearly state the reasons why.
9. Site plans. A fully-dimensioned site/landscaping plan that includes, at a minimum, the following information: specific placement of the proposed equipment shelters, antenna(s), and any other SWF on the site; setbacks from adjacent property lines; the location of existing structures, trees, and other significant site features; the type and locations of materials proposed to screen SWF antennas and other components; the proposed materials and color(s) for the SWF, and all other information required by the Director.
10. Photographs and visual analysis. Photo-simulations showing views of the proposed SWF from surrounding properties and adjoining PROW at varying distances and angles with a map indicating the locations used for the analysis and their distances from the site.
11. Documentation of Federal and State compliance. Copies of all applicable licenses, permits and/or other approvals required by the FCC, CPUC, and any other federal, state, and/or local agency with authority to regulate SWFs, and documentation of compliance with all conditions imposed in conjunction with such licenses or approvals. The required documentation shall include, but is expressly not limited to, the following:
a. Engineering calculations demonstrating that the proposed SWF will comply with all applicable FCC rules, regulations, and/or specifications.
b. Completion of the radio frequency (RF) emissions exposure guidelines checklist contained in Appendix A to the Federal Communications Commission's (FCC) "Local Government Official's Guide to Transmitting Antenna RF Emission Safety," or any successor regulations, to determine whether the SWF will be "categorically excluded," as that term is used by the FCC.
c. For a SWF that is not categorically excluded under the FCC regulations for RF emissions, the applicant shall submit an RF exposure compliance report prepared and certified by an RF engineer acceptable to the City that certifies that the proposed SWF, as well as any SWFs that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards, exposure limits and emission levels. The RF report must include the actual frequency and power levels (in watts effective radiated power "ERP") for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site.
12. Any environmental documentation required to obtain such federal and/or state license, permit or other approval.
13. CPUC. A copy of the certificate of public convenience and necessity issued by the California Public Utilities Commission ("CPUC") to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the wireless telecommunications service for which the facilities are proposed to be constructed in the PROW. Any applicant that, prior to 1996, provided telecommunications service under administratively equivalent documentation issued by the CPUC may submit copies of that documentation in lieu of a certificate of public convenience and necessity.
14. Environmental compliance. A completed environmental assessment and documentation establishing that all applicable environmental mitigation measures imposed by the CPUC, city and any other federal or state environmental determinations: (i) have been met; (ii) will be met as part of the proposed SWF; or (iii) are not applicable.
15. Noise compliance. A statement made under penalty of perjury that the level of noise to be emitted by the proposed SWF will comply with the noise standards contained in this code.
16. Traffic control plan. A traffic control plan when the proposed installation will require use of any active traffic lane on any street.
17. Any other information, studies and/or other documentation determined necessary by the City Engineer.
B. Application of federal "shot clocks." Applications shall be processed in compliance with the following federally established timelines:
1. The city shall have sixty (60) days from the date of receipt of an application for a permit to collocate one (1) or more SWFs on infrastructure, within which to evaluate the application for "completeness," i.e., to determine whether or not all requirements of this chapter and this code relating to the application, its contents and required information and submittals, have been satisfied. The foregoing period shall be ninety (90) days for applications to install one (1) or more SWFs in the PROW involving no collocation, or where SWFs identified in the application will be both collocated and not collocated.
2. Unless otherwise agreed upon in writing by the applicant and city, for an initial application to install one (1) or more SWFs, if the city notifies the applicant on or before the 10th day after submission that the application is materially incomplete, and identifies the missing documents or information and the specific rule or regulation creating the obligation to submit such documents or information, the time for the city to act on the application is tolled, and the shot clock date calculation shall restart at zero on the date on which the applicant submits all the documents and information identified by the city to render the application complete.
3. For any resubmitted application following the city's notice of deficiency, the time for the city to act on the application shall be tolled for the number of days from:
a. The day after the date when the city notifies the applicant in writing that the applicant's supplemental submission was not sufficient to render the application complete and identifies the missing documents or information that need to be submitted based on the city's original request under division B.2., above, until;
b. The date when the applicant submits all the documents and information identified by the city to render the application complete, provided the notice pursuant to division B.3.a., above is served on or before the 10th day after the date when the applicant makes a supplemental submission in response to the city's request under division B.2., above.
4. The "shot clock date" or starting date for a SWF application is determined by counting forward, beginning on the day after the date when the application was submitted, by the number of calendar days of the shot clock period identified in this division B., provided, that if the date calculated in this manner is a local, state, or federal holiday within the city or state ("legal holiday"), the shot clock date is the next business day after such date. The term "business day" means any day the city's administrative offices operate and any day that is not a legal holiday of the city or state.
C. Construction requirements.
1. Every permitted SWF shall be constructed/installed in strict compliance with the approved plans and specifications, provisions of this chapter, all laws, and all written policies and direction of the City Engineer related to installation of utilities and/or other physical encroachments into the PROW. All cabling and wiring must be contained in conduit, affixed directly to the face of the pole, for as long as it is technically feasible. No exposed slack or extra cable will be allowed. No visible electrical meters will be allowed. The applicant shall negotiate directly with the electric utility to determine a flat rate for installation. The applicant is responsible for the cost of all electrical usage.
2. All work shall be done in accordance with latest City of Brea Public Works, State, Caltrans, California Manual on Uniform Traffic Control Devises, Work Area Traffic Control Handbook, County and Federal Standards and Specifications or as otherwise required by the City Engineer. It is the contractor's responsibility to obtain the City of Brea Public Works Standards and Specifications before starting work. Any work done without inspection or not conforming to said standards and specifications shall be subject to removal and replacement in the presence of a City Public Works Inspector.
D. Insurance and indemnity.
1. As a condition of approval of every SWF permit, and by accepting such permit, the permittee, to the fullest extent permitted by law, agrees to and shall indemnify, defend and pay reasonable attorneys' fees and costs, and hold the City of Brea, its elected officials, officers, employees, attorneys, contractors, agents, and volunteers harmless, with respect to any and all claims, liabilities, and legal actions, allegedly or actually arising out of or related to, the acts and/or omissions of the applicant, its owners, officers, employees, contractors, agents, and any other person or entity acting on behalf of the applicant, in the exercise of rights and/or performance of obligations, in connection with any SWF or other permit issued to the applicant pursuant to this chapter.
2. Prior to entering any PROW pursuant to a SWF permit, the permittee shall procure, provide satisfactory evidence of, and maintain commercial general auto liability, and worker’s compensation insurance in such form and with such limits as required by the city's Risk Manager or otherwise as required as a condition of the issuance of a city encroachment permit. Unless approved in writing by the city Risk Manager, self-insurance shall not be deemed to satisfy the requirements of this chapter.
E. Written policy and guidelines. Due to rapidly changing technology and regulatory requirements, the City Council authorizes the City Engineer to publish a Wireless Application Policy and Guidelines to serve as further regulatory guidance and clarification. The Policy and Guidelines may be updated at the discretion of the City Engineer to adjust for new technologies and regulations, and compliance therewith is a condition of approval in every SWF permit.
F. Abandonment. Whenever a wireless permittee intends to abandon a wireless facility, including any SWF, the permittee must notify the City Engineer in writing of its planned abandonment. A wireless facility including SWF shall be removed within ninety (90) days of abandonment with attainment of all required permits. Any wireless facility not in use for a period of six (6) months shall be considered abandoned and shall be removed pursuant to this chapter.
G. Administrative variance. An administrative variance from the strict locational or physical requirements of § 12.28.030 or § 12.28.040 may be granted by the City Engineer in his or her discretion, when it is shown to the City Engineer's satisfaction based on substantial evidence that, because of special, unique circumstances applicable to the proposed location, the strict application of the requirements of the section would deprive the applicant of privileges enjoyed by other permittees in the vicinity operating a similar SWF. Any administrative variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other wireless providers seeking to locate any SWF in the area where such property is situated.
(Ord. 1208, passed 1-15-19)