Section
106.01.010 Applicability
106.01.020 Purpose
106.01.030 Definitions
106.01.040 Scope
106.01.050 Administration
106.01.060 General standards for wireless facilities in the public right of way
106.01.070 Applications
106.01.080 Findings; decisions; consultants
106.01.090 Conditions of approval
106.01.100 Breach; termination of permit
106.01.110 Infrastructure controlled by city
106.01.120 Nondiscrimination
The siting and construction of wireless facilities in the ROW are subject to the provisions of this Chapter 12.18. The siting and construction of wireless facilities on all other property are subject to the provisions in Title 17 of this code (the Zoning Ordinance).
(Ord. 1282, passed 5-1-19)
The purpose of this chapter is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the ROW of the city adjacent to all zoning districts consistent with the city’s obligation to promote the public health, safety, and welfare, to manage the ROW, and to ensure that the use and enjoyment of the ROW is not inconvenienced by the use of the ROW for the placement of wireless facilities. The city recognizes the importance of wireless facilities to provide high-quality communi-cations 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 ROW. This ordinance shall be interpreted consistent with those provisions.
(Ord. 1282, passed 5-1-19)
The terms used in this chapter shall have the following meanings. In the event of any conflict between these definitions and applicable definitions in federal law, the applicable provisions of federal law shall control over these definitions.
APPLICATION: A formal request, including all required and requested documentation and information, submitted by an applicant to the city for a wireless encroachment permit.
APPLICANT means a person filing an application for placement or modification of a wireless facility in the ROW.
BASE STATION shall have the meaning as set forth in Title 47 Code of Federal Regulations (C.F.R.) Section 1.40001(b)(1), or any successor provision.
DIRECTOR means the city’s Director of Public Works or designee.
ELIGIBLE FACILITIES REQUEST shall have the meaning as set forth in 47 C.F.R. § 1.40001(b)(3), or any successor provision.
FCC: means the Federal Communications Commission or its lawful successor.
HEARING OFFICER means a person designated by the City Council to conduct hearings.
MUNICIPAL INFRASTRUCTURE means city-owned or controlled property structures, objects, and equipment in the ROW, 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 ROW.
PERMITTEE means any person or entity granted a wireless encroachment permit pursuant to this chapter.
PERSONAL WIRELESS SERVICES shall have the same meaning as set forth in 47 U.S.C. § 332(c)(7)(C)(i).
PERSONAL WIRELESS SERVICES FACILITY means a wireless facility used for the provision of personal wireless services.
PUBLIC RIGHT OF WAY (ROW) means any public street, alley, sidewalk, street island, median or parkway that is owned or granted by easement, operated, or controlled by the city.
SMALL CELL FACILITY: means (and is intended to be consistent with and declaratory of the definition of “small wireless facility” in 47 C.F.R. § 1.6002(l), or any successor provision), a personal wireless services facility that meets any of the following conditions:
(1) The facility:
(a) Is mounted on an existing or proposed structure 50 feet or less in height, including antennas, as defined in 47 C.F.R. § 1.1320(d); or
(b) Is mounted on an existing or proposed structure no more than 10 percent taller than other adjacent structures; or
(c) Does not extend an existing structure on which it is located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
(2) 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 cubic feet in volume;
(3) 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 28 cubic feet in volume;
(4) The facility does not require antenna structure registration under 47 C.F.R. Part 17;
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
(6) 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).
STRUCTURE: means an apparatus located in the ROW which is in any way attached to, constructed on, or built into the ground, either directly or indirectly. This term includes, without limitation, street lights, traffic signals, and utility poles, but it does not include towers.
SUPPORT STRUCTURE: Any structure capable of supporting a base station.
TOWER: Any apparatus built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including those that are constructed for personal wireless 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 ROW; 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 ROW designed to support electric, telephone and similar utility lines. A tower is not a utility pole.
WIRELESS ENCROACHMENT PERMIT: A permit issued pursuant to this chapter authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the ROW; and the modification of any existing support structure to which the wireless facility is proposed to be attached.
WIRELESS FACILITY, or FACILITY: The transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s).
WIRELESS SERVICE PROVIDER: An entity that provides personal wireless services to end users.
WIRELESS INFRASTRUCTURE PROVIDER: A person that owns, controls, operates or manages a wireless facility or portion thereof within the ROW.
WIRELESS REGULATIONS: Those regulations adopted by the City Council or Director implementing the provisions of this chapter.
(Ord. 1282, passed 5-1-19)
(A) In general. There shall be a type of en-croachment 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 ROW or modify an existing wireless facility in the ROW 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 ROW 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, applicable law governing radio frequency (RF) emissions and all requirements for encroachments under HBMC Chapter 12.16.
(D) Pre-existing facilities in the ROW. Nothing in this chapter shall validate any existing illegal or unpermitted wireless facilities. All existing wireless facilities shall comply with and receive a wireless encroachment permit, when applicable, to be considered legal and conforming.
(E) Public use. Except as otherwise provided by California law, any use of the ROW authorized pursuant to this chapter will be subordinate to the city’s use and use by the public.
(Ord. 1282, passed 5-1-19)
(A) Review authority. The Director is responsible for administering this chapter. As part of the administration of this chapter, the Director may:
(1) Interpret the provisions of this chapter;
(2) 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;
(3) Develop and implement acceptable design, location and development standards for wireless facilities in the ROW, taking into account the zoning districts bounding the ROW;
(4) 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;
(5) Collect, as a condition of the completeness of any application, any fee established by this chapter;
(6) Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with federal laws and regulations;
(7) 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;
(8) Require, as part of, and as a condition of completeness of any application, that an applicant for a wireless encroachment permit send 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;
(9) Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and
(10) 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.
(B) Appeal.
(1) Any person claiming to be adversely affected by the decision of the Director pursuant to this chapter may appeal the Director’s decision. The appeal will be considered by a Hearing Officer appointed by the City Manager. The Hearing Officer 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 wireless facility. As Section 332(c)(7) of the Telecommunications Act preempts local decisions premised directly or indirectly on the environmental effects of radio frequency (RF) emissions, appeals of the Director’s decision premised on the environmental effects of radio frequency emissions will not be considered.
(2) 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 Hearing Officer. All appeals must be filed within two (2) business days of the written decision of the Director, unless the Director extends the time therefore. An extension may not be granted where extension would result in approval of the application by operation of law.
(3) Any appeal shall be conducted so that a timely written decision may be issued in accordance with applicable law. The appeal shall be conducted in accordance with any procedures adopted in the Wireless Regulations.
(Ord. 1282, passed 5-1-19)
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