A. Purpose.
1. The purpose of this Section is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the public rights-of-way of the City consistent with the City's obligation to promote the public health, safety, and welfare, to manage the public rights-of-way, and to ensure that the public's use of the public rights-of-way is not incommoded by the placement of wireless facilities. The City recognizes the importance of wireless facilities to provide high-quality communications service to the residents and businesses within the City, and the City also recognizes its obligation to comply with applicable Federal and State law regarding the placement of personal wireless services facilities in its public rights-of-way. This Section shall be interpreted consistent with those provisions.
B. Definitions. The terms used in this Section shall have the following meanings:
APPLICANT. A person filing an application for placement or modification of a wireless facility in the rights-of-way.
APPLICATION. A formal request that includes all required and requested documentation and information, submitted by an applicant to the City for a wireless encroachment permit.
BASE STATION. Shall have the meaning as set forth in 47 C.F.R. § 1.40001(b)(1), or any successor provision.
ELIGIBLE FACILITIES REQUEST. Shall have the meaning as set forth in 47 C.F.R. § 1.40001(b)(3), or any successor provision.
FCC. The Federal Communications Commission or its lawful successor.
MUNICIPAL INFRASTRUCTURE. City-owned or controlled property structures, objects, and equipment in the public rights-of-way, including, but not limited to, street lights, traffic control structures, banners, street furniture, bus stops, or other poles, lighting fixtures, or electroliers located within the public rights-of-way.
PERMITTEE. Any person or entity granted a wireless encroachment permit pursuant to this Section.
PERSONAL WIRELESS SERVICES. Shall have the same meaning as set forth in 47 U.S.C. § 332(c)(7)(C)(i) (as may be amended), which currently provides: commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.
PERSONAL WIRELESS SERVICES FACILITY. A wireless facility used for the provision of personal wireless services.
SMALL CELL FACILITY. Shall have the same meaning as SMALL WIRELESS FACILITY in 47 C.F.R. § 1.6002(1) (or any successor provision), which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forth below:
a. The facility:
i. Is mounted on a structure fifty (50) feet or less in height, including antennas, as defined in 47 C.F.R. § 1.1320(d);
ii. Are mounted on structures no more than 10% taller than other adjacent structures; or
iii. Do not extend existing structures on which they are located to a height of more than fifty (50) feet or by more than 10%, whichever is greater;
b. Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. § 1.1320(d)), is no more than three (3) cubic feet in volume;
c. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than twenty-eight (28) cubic feet in volume;
d. The facility does not require antenna structure registration under 47 C.F.R. Part 17;
e. The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
f. The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. § 1.1307(b).
SUPPORT STRUCTURE. Any structure capable of supporting a base station.
TOWER. Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. This definition does not include utility poles.
UNDERGROUND AREAS. Those areas where there are no electrical facilities or facilities of the incumbent local exchange carrier in the public rights-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages in excess of 35,000 volts.
UTILITY POLE. A structure in the public rights-of-way designed to support electric, telephone, cable television and similar utility lines. A tower is not a utility pole.
WIRELESS ENCROACHMENT PERMIT. A permit issued pursuant to this Section authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the public rights-of-way; and the modification of any existing support structure to which the wireless facility is proposed to be attached.
WIRELESS FACILITY or FACILITY. The radios, transmitters, antenna structures, electric meters, batteries, conduit, fiber optic and coax cables, and other types of installations used for the provision of wireless transmissions at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s).
WIRELESS INFRASTRUCTURE PROVIDER. A person that owns, controls, operates or manages a wireless facility or portion thereof within the public rights-of-way.
WIRELESS REGULATIONS. Those regulations adopted pursuant to § 11.20.065 of this Code and implementing the provisions of this Chapter.
WIRELESS SERVICE PROVIDER. An entity that provides personal wireless services to end users.
C. Scope.
1. In general. A "wireless encroachment permit" shall be subject to all of the same requirements as an encroachment permit would under Chapter 11.20, in addition to all of the requirements of this Section. Unless exempted, every person who desires to place a wireless facility in the public rights-of-way or modify an existing wireless facility in the public rights-of-way must obtain a wireless encroachment permit authorizing the placement or modification in accordance with this Section. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of facility expressly allowed in the public rights-of-way by state or federal law, no other wireless facilities shall be permitted pursuant to this Section.
2. Exemptions. This Section does not apply to:
a. The placement or modification of facilities by the City or by any other agency of the state solely for public safety purposes.
b. Installation of a "cell on wheels," "cell on truck" or a similar structure for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing facilities.
3. Other applicable requirements. In addition to the wireless encroachment permit required herein, the placement of a wireless facility in the public rights-of-way requires the persons who will own or control those facilities to obtain all permits required by applicable law, and to comply with applicable law, including, but not limited to, applicable law governing radio frequency (RF) emissions.
4. Pre-existing facilities in the public rights-of-way. Any wireless facility already lawfully existing in the public rights-of-way as of the date of this Section's adoption shall remain, as long as the wireless facility continues to comply with all conditions and requirements imposed upon its original permitting. Upon expiration of any permit which pre-exists the adoption of this Section, any renewal of such facility's permit shall have to comply with this Section.
5. Public use. Except as otherwise provided by state law, any use of the public rights-of-way authorized pursuant to this Section will be subordinate to the City's use and use by the public.
D. Administration.
1. Public Works Director/City Engineer. Except as expressly provided in this Section, the Public Works Director/City Engineer or their designee is responsible for administering this Section. As part of the administration of this Section, the Public Works Director/City Engineer may:
a. Interpret the provisions of this Section;
b. Develop and implement standards governing the placement and modification of wireless facilities consistent with the requirements of this Section, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities;
c. Develop and implement acceptable designs and development standards for wireless facilities in the public rights-of-way, taking into account the zoning districts bounding the public rights-of-way;
d. Develop forms and procedures for submission of applications for placement or modification of wireless facilities, and proposed changes to any support structure consistent with this Section;
e. Collect, as a condition of the completeness of any application, any fee established by this Section or by resolution of the City Council;
f. Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with State and Federal laws and regulations;
g. Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued;
h. Require, as part of, and as a condition of completeness of any application, notice to members of the public that may be affected by the placement or modification of the wireless facility and proposed changes to any support structure;
i. Determine whether to approve, approve subject to conditions, or deny an application, subject to appeal as provided herein;
j. Take such other steps as may be required to timely act upon applications for placement of wireless facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application; and
k. Refer applications proposing the installation of a new pole to the City Council for review and decision, after the application is determined to be complete by the Public Works Director/City Engineer.
2. City Manager. The City Manager or his/her designee(s) shall be responsible for negotiating and entering into agreements for the attachment of wireless facilities to municipal infrastructure required by this Section.
3. Appeals.
a. Any person adversely affected by the decision of the Public Works Director/City Engineer pursuant to this Section may appeal the decision to the City Council, which may decide the issues de novo, and whose written decision will be the final decision of the City. Any appeal shall be conducted so that a timely written decision may be issued in compliance with any legally-required deadline.
b. All appeals must be filed within two (2) business days of the written decision of the Public Works Director/City Engineer, unless the Public Works Director/City Engineer extends the time therefore. An extension may not be granted where extension would result in approval of the application by operation of law.
c. An appeal by a wireless infrastructure provider must be taken jointly with the wireless service provider that intends to use the personal wireless services facility.
d. If the Public Works Director/City Engineer determines that an application must be approved because a denial would result in a prohibition or effective prohibition under applicable federal law, the Public Works Director/City Engineer shall not render a decision on the application, but instead shall refer the application directly to the City Council for review and decision, whose review shall be conducted in accordance with division a. of this section.
E. General standards for wireless facilities in the public rights-of-way.
1. Generally. Wireless facilities in the public rights-of-way shall meet the minimum requirements set forth in this section and the wireless regulations, in addition to the requirements of any other applicable law.
2. Regulations. The wireless regulations and decisions regarding applications for placement of wireless facilities in the public rights-of-way shall, at a minimum, ensure that the requirements of this Section are satisfied, unless it is determined that applicant has established that denial of an application would, within the meaning of Federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. If that determination is made, the requirements of this Section may be waived, but only to the minimum extent required to avoid the prohibition or violation.
3. Minimum standards. Wireless facilities shall be installed and modified in a manner that: minimizes risks to public safety; avoids placement of aboveground facilities in underground areas; minimizes installation of new support structures or equipment cabinets in the public rights-of-way; maintains the integrity and character of the neighborhoods and corridors in which the facilities are located; ensures that installations are subject to periodic review to minimize the intrusion on the public rights-of-way; ensures that the City bears no risk or liability as a result of the installations; does not inconvenience the public; does not interfere with the primary uses of the rights-of-way; and, does not hinder the ability of the City or other government agencies to improve, modify, relocate, abandon, or vacate the public rights-of-way or any portion thereof.
4. Additional standards. All wireless facilities proposed to be placed in the public rights-of-way shall comply with the design and locational standards established by City Council Resolution.
F. Applications.
1. Submission. Unless the wireless regulations provide otherwise, an applicant shall submit an application, amendments, or supplements to an application, or responses to requests for information regarding an application on the forms and in compliance with the standards adopted by the Public Works Director/City Engineer. All applicant submissions shall be made to the Public Works Director/City Engineer, at City Hall, 9770 Culver Boulevard, Culver City, California 90232.
2. Pre-application meeting. Prior to filing an application for a wireless encroachment permit, an applicant is encouraged to schedule a pre-application meeting with the Public Works Director/City Engineer to discuss the proposed facility, the requirements of this Section, and any potential impacts of the proposed facility.
3. Content.
a. An applicant shall submit an application on the form approved by the Public Works Director/City Engineer, which may be updated from time-to-time, but in any event shall require the submission of all required fee(s), documents, information, and any other materials necessary to allow the Public Works Director/City Engineer to make required findings and ensure that the proposed facility will comply with applicable Federal and State law, this Code, and will not endanger the public health, safety, or welfare. If no form has been approved, applications must contain all information necessary to show that the applicant is entitled to the wireless encroachment permit requested, and must specify whether the applicant believes State or Federal law requires action on the application within a specified time period.
b. An applicant shall provide written notice of its application to all residents and businesses within 500 feet of any proposed facility. The applicant shall provide a list of those residents and businesses so notified in its application and attest that the notice required by this section has been provided.
4. Fees. Application fee(s) shall be required to be submitted with any application for a wireless encroachment permit. The City Council is hereby authorized to determine, or cause to be determined, the amount, type, and other terms of such fee(s) from time to time by means of resolution. Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for a wireless encroachment permit.
5. Waivers. Requests for waivers from any requirement of this Section shall be made in writing to the Public Works Director/City Engineer or his or her designee. The Public Works Director/City Engineer may grant or deny a request for a waiver pursuant to this section. The Public Works Director/City Engineer may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of a waiver, the City will be provided all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the permit sought. All waivers approved pursuant to this section shall be (i) granted only on a case-by-case basis, and (ii) narrowly-tailored to minimize deviation from the requirements of this Code.
6. Application incompleteness. For personal wireless facilities and eligible facilities requests, applications will be processed, and notices of incompleteness provided, in conformity with State, Local, and Federal law. If such an application is incomplete, the Public Works Director/City Engineer may notify the applicant and specify the material omitted from the application.
7. Applications denied without prejudice. To promote efficient review and timely decisions, the City may deny an application without prejudice when the applicant fails to tender a substantive response to the City within 180 calendar days after the City deems the application incomplete in a written notice to the applicant. In the event the application is denied without prejudice as provided herein and the applicant seeks to pursue an application at the same location, the applicant shall be required to submit a new application and applicable fee.
G. Findings; decisions; consultants.
1. Findings required for approval.
a. Except for eligible facilities requests, the Public Works Director/City Engineer or City Council, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following:
i. The facility is not detrimental to the public health, safety, and welfare;
ii. The facility complies with this Section and all applicable design and development standards; and
iii. The facility meets applicable requirements and standards of State and Federal law.
b. For eligible facilities requests, the Public Works Director/City Engineer or City Council, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following:
i. That the application qualifies as an eligible facilities request; and
ii. That the proposed facility will comply with all generally-applicable laws.
2. Decisions. Decisions on an application by the Public Works Director/City Engineer or City Council shall be in writing and include the reasons for the decision. Decisions shall be sent by overnight mail, electronic mail or other means to the applicant, appellant (if applicable) and to any person who submitted written comments on the application.
3. Independent consultants. The Public Works Director/City Engineer or City Council, as the case may be, is authorized, in its discretion, to select and retain independent consultant(s) with expertise in telecommunications in connection with the review of any application under this Section. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including, but not limited to, application completeness or accuracy, structural engineering analysis, or compliance with FCC radio frequency emissions standards.
H. Conditions of approval.
1. Adoption by resolution. The City Council shall adopt by resolution standard conditions that shall apply to all wireless encroachment permits approved under this Section. Such standard conditions shall also apply to any wireless facility granted or approved by operation of law. The standard conditions shall address, without limitation, the following: compliance with this Code and applicable law; duration, renewal, and termination of wireless encroachment permits; installation of facilities; commencement of operations; as-built drawings; inspections; emergency procedures; maintaining updated contact information of relevant persons; insurance, indemnification, and bond requirements; minimizing impacts on adjacent properties; noninterference with and relocation to accommodate other improvements or uses of the public rights-of-way; no right, title, or interest (including possessory interest) created by a permit; maintenance requirements; ongoing compliance with FCC radio frequency emissions standards; facility access and testing; modifications to the facility; requiring an agreement with the City for use of Municipal Infrastructure; abandonment of facilities; records retention; attorney's fees; and any additional conditions for eligible facility requests and small cell facilities.
2. Modification. The approving authority (Public Works Director/City Engineer or City Council, as the case may be) may impose additional conditions, remove conditions, or otherwise modify the standard conditions applicable to a wireless encroachment permit in its sole discretion on a case-by-case basis.
I. Breach; termination of permit.
1. For breach. A wireless encroachment permit may be revoked for failure to comply with the conditions of the permit or applicable law. Upon revocation, the wireless facility must be removed; provided that removal of a support structure owned by the City, a utility, or another entity authorized to maintain a support structure in the public rights-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City. All costs incurred by the City in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility.
2. For installation without a permit. Any wireless facility installed without a wireless encroachment permit (except for those exempted by this Section) must be removed; provided that removal of support structure owned by the City, a utility, or another entity authorized to maintain a support structure in the public rights-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City. All costs incurred by the City in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility.
J. Infrastructure controlled by City. The City, as a matter of policy, will negotiate agreements for use of municipal infrastructure. The placement of wireless facilities on those structures shall be subject to the agreement. The agreement shall specify the compensation to the City for use of the structures. The person seeking the agreement shall additionally reimburse the City for all costs the City incurs in connection with its review of, and action upon the person's request for, an agreement.
K. Nondiscrimination. In establishing the rights, obligations and conditions set forth in this Section, it is the intent of the City to treat each applicant or public rights-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, and with considerations that may be unique to the technologies, situation and legal status of each particular applicant or request for use of the public rights-of-way.
(Ord. No. 2019-002, § 2)