A. Generally. Wireless telecommunications facilities shall be installed and modified in a manner that minimizes risks to public safety and utilizes installation of new support structures or equipment cabinets in the PROW only after all existing and replacement structure options have been exhausted; and where feasible, places equipment underground, and otherwise 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 PROW; and ensures that the city bears no risk or liability as a result of the installations, and that such use does not inconvenience the public, interfere with the primary uses of the PROW, or hinder the ability of the city or other government agencies to improve, modify, relocate, abandon, or vacate the PROW or any portion thereof, or to cause the improvement modification, relocation vacation or abandonment of facilities in the PROW.
B. Collocation encouraged. Where the facility site is capable of accommodating a collocated 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 collocation of third-party facilities, provided the parties can mutually agree upon reasonable terms and conditions.
C. Findings required for approval.
1. Administrative WTFP Applications for SWFs. For WTFP applications proposing a SWF, the public works director shall approve such application if, on the basis of the application and other materials or evidence provided in review thereof, all of the following findings can be made:
a. The facility qualifies as a SWF; and
b. The facility meets all standards, requirements and further findings as may be specified in the SWF Regulations; and
c. The facility is not detrimental to the public health, safety, and welfare; and
d. The facility meets applicable requirements and standards of state and federal law.
2. Administrative WTFP applications for eligible facility requests. For WTFP applications proposing an eligible facilities request, the public works director shall approve such application if, on the basis of the application and other materials or evidence provided in review thereof, all of the following findings can be made:
a. That the application qualifies as an eligible facilities request; and
b. That the proposed facility will comply with all generally-applicable laws.
3. Major WTFP applications. No Major WTFP shall be granted unless all of the following findings are made by the applicable decision-maker:
a. If applicable, all notices required for the proposed WTFP have been given, including the inclusion, or placement on-site, of photo simulations for the proposed facility.
b. The proposed wireless telecommunications facility has been designed and located in compliance with all applicable provisions of this chapter.
c. If applicable, the applicant has demonstrated its inability to locate on an eligible support structure.
d. The applicant has provided sufficient evidence supporting the applicant’s claim that it has the right to enter the PROW pursuant to state or federal law, or the applicant has entered into a franchise agreement with the city permitting them to use the PROW.
e. The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible, supported by factual evidence and a meaningful comparative analysis to show that all alternative locations and designs identified in the application review process were technically infeasible or not reasonably available.
D. Notice; decisions. The provisions in this Section describe the procedures for the approval process, any required notice and public hearings for a WTFP application.
1. Administrative WTFPs: Notice of a WTFP application for a SWF shall be mailed to owners and occupants of real property surrounding the proposed SWF site in the manner specified in the SWF Regulations. Applications qualifying for eligible facilities requests shall not require notice.
2. Major WTFP applications. Any Major WTFP application shall require notice and a public hearing. Notice of such hearing shall be provided in accordance with Government Code § 65091. Public notices shall include color photo simulations from three different angles depicting the wireless telecommunication facility as proposed to be considered by the public works director. If the application proposes the use of an existing or replacement eligible support structure, such simulations shall be posted upon the proposed support structure for a period of at least thirty days prior to the date of approval; such posted simulations shall remain in place until final decision on the application is reached.
3. Written decision required for all WTFP determinations. Unless otherwise specified for SWFs in the SWF regulations. all final decisions made pursuant to this chapter, including those for administratively-processed permits and eligible facilities requests, shall be in writing and based on substantial evidence in the written administrative record. Within five days after any decision to grant, approve, deny or conditionally grant a WTFP application. the public works director shall provide written notice including the following:
a. A general explanation of the decision, including the findings required for the decision, if any, and how those findings were supported or not supported by substantial evidence.
b. A general description of the property involved;
c. Information about applicable rights to appeal the decision and explanation of how that right may be exercised; and
d. To be given by first class mail to:
(i) The project applicant and property owner;
(ii) Any person who submitted written comments concerning the WTFP;
(iii) Any person who has filed a written request with the city to receive such notice; and
(iv) Any homeowner association on file with the city that has jurisdiction over the WTFP site.
4. Once a WTFP is approved, no changes shall be made to the approved plans without review and approval in accordance with this chapter.
E. Appeals.
1. Appeals for eligible facilities requests. The decision of the public works director that an application for an eligible facility(ies) request does not qualify as an eligible facilities request (or if the applicant fails to provide information sufficient to make such determination) and/or that the proposed facility will not comply with all generally applicable laws shall be final. Otherwise, if the proposed facility qualifies as an eligible facilities request and will be in compliance with all applicable laws, the proposed eligible facilities request must be approved by the public works director.
2. SWF appeals. The decision of the public works director as to any SWF Administrative WTFP shall be final.
3. Appeals on Major WTFPs. Any aggrieved person or entity may appeal a decision by the public works director on a Major WTFP by filing a written notice of appeal after the decision. Such appeal shall set forth the reasons therefor and must be filed within two business days of the written administrative decision, unless the public works director extends the time therefor. An extension may not be granted where extension would result in approval of the application by operation of law. The city council shall hear such appeals not less than ten nor more than sixty days after the filing of the appeal. The city council may hear the appeal de novo.
F. Notice of shot clock expiration. The city acknowledges there are federal and state shot clocks which may be applicable to a proposed wireless telecommunications facility. That is, federal and state law provide time periods in which the city must approve or deny a proposed wireless telecommunications facility. As such, the applicant is required to provide the city written notice of the expiration of any shot clock, which the applicant shall ensure is received by the city (e.g. overnight mail) no later than twenty days prior to the expiration. (Ord. 2019-04-1504 § 6)