A. In General: There shall be a type of encroachment permit entitled a "wireless encroachment permit," which shall be subject to all of the same requirements as an encroachment permit would under Chapter 12.16 in addition to all of the requirements of this chapter. 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 chapter. 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 chapter.
B. Exemptions: This chapter does not apply to:
1) The placement or modification of facilities by the City or by any other agency of the state solely for public safety purposes.
2) 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.
C. Other Applicable Requirements: In addition to the wireless encroachment permit required herein, the placement of a wireless facility in the ROW 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.
D. Pre-existing Facilities In The ROW: Any wireless facility already existing in the ROW as of the date of this chapter's adoption shall remain, subject to the provisions of this Code in effect prior to the effective date of this chapter, unless and until an extension of such facility's then-existing permit is granted, at which time the provisions of this chapter shall apply in full force going forward as to such facility. The review of any request for a renewal of a permit for such pre-existing facilities shall be conducted pursuant to this chapter, rather than the portions of this Code that it was previously reviewed under.
E. Public Use: Except as otherwise provided by California law, any use of the public right-of-way authorized pursuant to this chapter will be subordinate to the City's use and use by the public.
F. Administration:
1) Director: The Director is responsible for administering this chapter. As part of the administration of this chapter, the Director may:
i. Interpret the provisions of this chapter;
ii. Develop and implement standards governing the placement and modification of wireless facilities consistent with the requirements of this chapter, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities;
iii. 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;
iv. 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 chapter;
v. Collect, as a condition of the completeness of any application, any fee established by this chapter;
vi. 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;
vii. 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;
viii. Require, as part of, and as a condition of completeness of any application, mailing labels sufficient to notify the owners of all adjacent properties of the placement or modification of the wireless facility and proposed changes to any support structure by letter. "Adjacent properties" shall include all lots which directly abut or are directly across any public or private right-of-way from the subject location;
ix. Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and
x. 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.
2) Appeal:
i. Any
person adversely affected by the decision of the Director pursuant to this chapter may, upon completion of the City's form of appeal and payment of the fee established by resolution of the City Council, appeal the Director's decision to the City Manager, which may decide the issues de novo, and whose written decision will be the final decision of the City. 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.
ii. Where the Director grants an application based on a finding that denial would result in a prohibition or effective prohibition under applicable federal law, the decision shall be automatically appealed to the City Manager. All appeals must be filed within five (5) business days of the written decision of the Director, unless the Director extends the time therefor. An extension may not be granted where extension would result in approval of the application by operation of law.
iii. Any appeal shall be conducted so that a timely written decision may be issued in accordance with applicable law.
G. General Standards For Wireless Facilities In The Public Rights-of-Way:
1) Generally: Wireless facilities in the ROW shall meet the minimum requirements set forth in this chapter and the wireless regulations, in addition to the requirements of any other applicable law.
2) Regulations: The wireless regulations and decisions on applications for placement of wireless facilities in the ROW 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 chapter may be waived, but only to the minimum extent required to avoid the prohibition or violation.
3) Minimum Standards: All applicants shall design and locate wireless facilities in accordance with the design standards and wireless regulations set forth separately by resolution adopted by the City Council.
H. Applications:
1) Submission: Unless the wireless regulations provide otherwise, an applicant shall submit a paper copy and an electronic copy of any application, amendments, or supplements to an application, or responses to requests for information regarding an application to the Director.
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 Director to discuss the proposed facility, the requirements of this chapter, and any potential impacts of the proposed facility.
3) Content: An applicant shall submit an application on the form approved by the Director, which may be updated from time-to-time, but in any event shall require the submission of all required fees, documents, information, and any other materials necessary to allow the Director 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 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.
4) Fees: Application fees 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 fees 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 unless paid as a refundable deposit.
5) Waivers: Requests for waivers from any requirement of this section shall be made in writing to the Director or his or her designee. The Director may grant or deny a request for a waiver pursuant to this subsection. The Director 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 subsection shall be (1) granted only on a case-by-case basis, and (2) narrowly-tailored to minimize deviation from the requirements of this Code.
6) 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 Director may notify the applicant in writing, and specifying the material omitted from the application.
I. Findings; Decisions; Consultants:
1) Findings Required For Approval:
i. Except for eligible facilities requests, the Director or the City Manager, 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:
a. The facility is not detrimental to the public health, safety, and welfare;
b. The facility complies with this chapter and all applicable design and development standards;
c. The facility meets applicable requirements and standards of state and federal law; and
ii. For eligible facilities requests, the Director or the City Manager, 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:
a. That the application qualifies as an eligible facilities request; and
b. That the proposed facility will comply with all generally-applicable laws.
2) Decisions: Decisions on an application by the Director or the City Manager shall be in writing and include the reasons for the decision.
3) Independent Consultants: The Director or the City Manager, as the case may be, is authorized, in its discretion, to select and retain independent consultants with expertise in telecommunications in connection with the review of any application under this chapter. 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.
J. Conditions Of Approval:
1) Generally: In addition to any supplemental conditions imposed by the Director or the City Manager, as the case may be, all permits granted pursuant to this chapter shall be subject to the following conditions, unless modified by the approving authority:
i. Code Compliance: The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules, including, without limitation, those applying to use of public rights-of-way.
ii. Permit Duration: A wireless encroachment permit shall be valid for a period of ten (10) years, unless pursuant to another provision of the Code or these conditions, it expires sooner or is terminated. At the end of ten (10) years from the date of issuance, such permit shall automatically expire, unless an extension or renewal has been granted. A person holding a wireless encroachment permit must either (1) remove the facility within thirty (30) days following the permit's expiration (provided that removal of support structure owned by the City, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City); or (2) at least ninety (90) days prior to expiration, submit an application to renew the permit, which application must, among all other requirements, demonstrate that the impact of the wireless facility cannot be reduced. The wireless facility must remain in place until it is acted upon by the City and all appeals from the City's decision exhausted.
iii. Public Notice: Upon issuance of a permit, the City shall mail notice of the approved wireless telecommunications facility to all adjacent property owners.
iv. Timing Of Installation: The installation and construction authorized by a wireless encroachment permit shall begin within one (1) year after its approval, or it will expire without further action by the City. The installation and construction authorized by a wireless encroachment permit shall conclude, including any necessary post-installation repairs and/or restoration to the ROW, within thirty (30) days following the day construction commenced.
v. Commencement Of Operations: The operation of the approved facility shall commence no later than one (1) month after the completion of installation, or the wireless encroachment permit will expire without further action by the City.
vi. As-Built Drawings: The permittee shall submit an as-built drawing within ninety (90) days after installation of the facility. As-built drawings shall be in an electronic format acceptable to the City.
vii. Inspections; Emergencies: The City or its designee may enter onto the facility area to inspect the facility upon 48 hours prior notice to the permittee. The permittee shall cooperate with all inspections and may be present for any inspection of its facility by the City. The City reserves the right to enter or direct its designee to enter the facility and support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property. The City shall make an effort to contact the permittee prior to disabling or removing any facility elements, but in any case shall notify permittee within twenty four (24) hours of doing so.
viii. Contact: The permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address and email address for at least one (1) natural person.
ix. Insurance: The permittee shall obtain and maintain throughout the term of the permit commercial general liability insurance with a limit of one million dollars ($1,000,000) per occurrence for bodily injury and property damage and two million dollars ($2,000,000) general aggregate including premises operations, contractual liability, personal injury, and products completed operations. The relevant policies shall name the City, its elected and appointed officials, officers, representatives, agents, and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) days' prior notice to the City of the cancellation or material modification of any applicable insurance policy.
x. Indemnities: The permittee and, if applicable, the owner of the property upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, and employees (i) from any and all damages, liabilities, injuries, losses, costs, and expenses, and from any and all claims, demands, law suits, writs of mandamus, and other actions or proceedings brought against the city or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void or annul the city's approval of the permit, and (ii) from any and all damages, liabilities, injuries, losses, costs, and expenses, and any and all claims, demands, law suits, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee or, if applicable, the property owner or any of each one's agents, employees, licensees, contractors, subcontractors, or independent contractors. In the event the city becomes aware of any such actions or claims the city shall promptly notify the permittee and, if applicable, the property owner and shall reasonably cooperate in the defense. The City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City's defense, and the property owner and/or the permittee (as applicable) shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense.
xi. Performance Bond: Prior to issuance of a wireless encroachment permit, the permittee shall file with the City, and shall maintain in good standing throughout the term of the approval, a performance bond or other surety or another form of security for the removal of the facility in the event that the use is abandoned or the permit expires, or is revoked, or is otherwise terminated. The security shall be in the amount equal to one hundred percent (100%) of the cost of physically removing the facility and all related facilities and equipment on the site, based on the higher of two (2) contractor's quotes for removal that are provided by the permittee. The permittee shall reimburse the City for staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by the City Council. Reimbursement shall be paid when the security is posted and during each administrative review.
xii. Adverse Impacts On Adjacent Properties: The permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, and removal of the facility.
xiii. Noninterference: The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the City shall be moved to accommodate a permitted activity or encroachment, unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the City's structure, improvement, or property. Prior to commencement of any work pursuant to a wireless encroachment permit, the permittee shall provide the City with documentation establishing to the city's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement, or property within the public right-of-way or city utility easement to be affected by the permittee's facilities.
xiv. No Right, Title, Or Interest: The permission granted by a wireless encroachment permit shall not in any event constitute an easement on or an encumbrance against the public right-of-way. No right, title, or interest (including franchise interest) in the public right-of-way, or any part thereof, shall vest or accrue in the Permittee by reason of a wireless encroachment permit or the issuance of any other permit or exercise of any privilege given thereby.
xv. No Possessory Interest: No possessory interest is created by a wireless encroachment permit. However, to the extent that a possessory interest is deemed created by a governmental entity with taxation authority, the permittee acknowledges that the City has given to permittee notice pursuant to California Revenue and Taxation Code Section 107.6 that the use or occupancy of any public property pursuant to a wireless encroachment permit may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Permittee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interact taxes or other taxes, fees, and assessments levied against the permittee's right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this permit.
xvi. General Maintenance: The site and the facility, including, but not limited to, all screening, camouflaging or paint materials, landscaping, fencing, and related transmission equipment, must be maintained in a neat and clean manner and in accordance with all approved plans. All graffiti on facilities must be removed at the sole expense of the permittee within forty eight (48) hours after notification from the City.
xvii. RF Exposure Compliance: All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RF exposure standards. After transmitter and antenna system optimization, but prior to unattended operations of the facility, permittee or its representative must conduct on-site post-installation RF emissions testing to demonstrate actual compliance with the FCC OET Bulletin 65 RF emissions safety rules for general population/uncontrolled RF exposure in all sectors. For this testing, the transmitter shall be operating at maximum operating power, and the testing shall occur outwards to a distance where the RF emissions no longer exceed the uncontrolled/general population limit. The permittee shall submit documentation of this testing within ninety (90) days after installation of the facility.
xviii. Testing: Testing of any equipment shall take place on weekdays only, and only between the hours of 8:30 A.M. and 4:30 P.M., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days.
xix. Modifications: No changes shall be made to the approved plans without review and approval in accordance with this chapter.
xx. Agreement With City: If not already completed, the permittee shall enter into the appropriate agreement with the City, as determined by the City, prior to constructing, attaching, or operating a facility on municipal infrastructure. This permit is not a substitute for such agreement.
xxi. Conflicts With Improvements: For all facilities located within the ROW, the permittee shall remove or relocate, at its expense and without expense to the City, any or all of its facilities when such removal or relocation is deemed necessary by the city by reason of any change of grade, alignment, or width of any right-of-way, for installation of services, water pipes, drains, storm drains, power or signal lines, traffic control devices, right-of-way improvements, or for any other construction, repair, or improvement to the right-of-way.
xxii. Abandonment: If a facility is not operated for a continuous period of six (6) months, the wireless encroachment permit and any other permit or approval therefor shall be deemed abandoned and terminated automatically, unless before the end of the six (6) month period (i) the Director has determined that the facility has resumed operations, or (ii) the City has received an application to transfer the permit to another service provider. No later than ninety (90) days from the date the facility is determined to have ceased operation or the permittee has notified the Director of its intent to vacate the site, the permittee shall remove all equipment and improvements associated with the use and shall restore the site to its original condition to the satisfaction of the Director. The permittee shall provide written verification of the removal of the facilities within thirty (30) days of the date the removal is completed. If the facility is not removed within thirty (30) days after the permit has been discontinued pursuant to this subsection, the site shall be deemed to be a nuisance, and the City may cause the facility to be removed at permittee's expense or by calling any bond or other financial assurance to pay for removal. If there are two (2) or more users of a single facility or support structure, then this provision shall apply to the specific elements or parts thereof that were abandoned, but will not be effective for the entirety thereof until all users cease use thereof.
xxiii. Encourage Co-location: Where the facility site is capable of accommodating a co-located facility upon the same site in a manner consistent with the permit conditions for the existing facility, the owner and operator of the existing facility shall allow co-location of third party facilities, provided the parties can mutually agree upon reasonable terms and conditions.
xxiv. Records: The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition or fails to produce true and complete copies of such records within a reasonable time after a written request from the City, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.
xxv. Attorneys' Fees: In the event the City determines that it is necessary to take legal action to enforce any of these conditions, or to revoke a permit, and such legal action is taken, the permittee shall be required to pay any and all costs of such legal action, including reasonable attorneys' fees, incurred by the City, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the City should otherwise agree with permittee to waive said fees or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement proceeding.
2) Eligible Facilities Requests: In addition to the conditions provided in Section 9(a) of this chapter and any supplemental conditions imposed by the Director or the City Manager, as the case may be, all permits for an eligible facility requests granted pursuant to this chapter shall be subject to the following additional conditions, unless modified by the approving authority:
i. Permit Subject To Conditions Of Underlying Permit: Any permit granted in response to an application qualifying as an eligible facilities request shall be subject to the terms and conditions of the underlying permit.
ii. No Permit Term Extension: The City's grant or grant by operation of law of an eligible facilities request permit constitutes a federally-mandated modification to the underlying permit or approval for the subject tower or base station. Notwithstanding any permit duration established in another permit condition, the city's grant or grant by operation of law of an eligible facilities request permit will not extend the permit term for the underlying permit or any other underlying regulatory approval, and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station.
iii. No Waiver Of Standing: The city's grant or grant by operation of law of an eligible facilities request does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409(a) of the Spectrum Act, any FCC rules that interpret Section 6409(a) of the Spectrum Act, or any modification to Section 6409(a) of the Spectrum Act.
3) Small Cell Facilities Requests: In addition to the conditions provided in Section 9(a) of this chapter and any supplemental conditions imposed by the Director or the City Manager, as the case may be, all permits for a small cell facility granted pursuant to this chapter shall be subject to the following condition, unless modified by the approving authority:
i. No Waiver Of Standing: The city's grant of a permit for a small cell facility request does not waive, and shall not be construed to waive, any standing by the city to challenge any FCC orders or rules related to small cell facilities, or any modification to those FCC orders or rules.
K. 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 City, a utility, or another entity authorized to maintain a support structure in the right-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 chapter) must be removed; provided that removal of support structure owned by City, a utility, or another entity authorized to maintain a support structure in the right-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.
3) Violation: Any violation of this chapter will be subject to the same penalties as a violation of Chapter 1.20 of this Code.
L. 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.
M. Nondiscrimination: In establishing the rights, obligations and conditions set forth in this chapter, it is the intent of the City to treat each applicant or public right-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. 2894 §2, 2019)