PUBLIC HEARING. 2. Declare the Hearing Continued: Mayor Dyda (Continued from February 16, 2016)

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1 Date: March 1, 2016 PUBLIC HEARING Subject: Consideration and Possible Action to Introduce an Ordinance for Wireless Telecommunication Installations in the City s Public Rights-of-Way Subject Property: Citywide 1. Report of Notice Given: City Clerk Morreale 2. Declare the Hearing Continued: Mayor Dyda (Continued from February 16, 2016) 3. Staff Report & Recommendation: Special Counsel Lopez Deputy Director of Public Works Jules 4. Public Testimony: Appellant: Applicant: N/A City 5. Council Questions: 6. Rebuttal: 7. Council Deliberation: 8. Declare Hearing Closed: Mayor Dyda 9. Council Action: 1

2 RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 03/01/2016 AGENDA REPORT AGENDA HEADING: Public Hearings AGENDA DESCRIPTION: Consideration and possible action to introduce an ordinance for wireless telecommunications installations within the City s public rights-of-way. RECOMMENDED COUNCIL ACTION: 1) Introduce Ordinance No. AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED WIRELESS TELECOMMUNICATIONS FACILITIES TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY FISCAL IMPACT: None Amount Budgeted: Additional Appropriation: Account Number(s): N/A N/A N/A ORIGINATED BY: Christy Marie Lopez, Special Counsel Nicole Jules, PE, Deputy Director of Public Works REVIEWED BY: Michael Throne, PE, Director of Public Works APPROVED BY: Doug Willmore, City Manager ATTACHED SUPPORTING DOCUMENTS: A. RPVMC Section regarding wireless installations in the ROW (page A-1) B. Staff Report regarding the Urgency Ordinance, dated January 19, 2016 (page B-1) C. Draft of ordinance made public on January 20, 2016 (page C-1) D. Minutes from the Community Workshop held on February 1, 2016 (page D-1) E. Comment letter from CalWa, dated February 1, 2016 (page E-1) F. comments from the public (page F-1) G. Redlined draft of ordinance depicting changes made since January 19, 2016 (page G-1) H. Proposed Ordinance No., recommended for adoption (page H-1) I. Proposed Wireless Telecommunications Application (page I-1) J. Additional public and industry comments received (page J-1) K. Sample Wireless Process and Guideline document (page K-1) 2

3 L. Sample Frequently-Asked Questions (FAQ) document (page L-1) EXECUTIVE SUMMARY: On January 19, 2016, the City adopted Urgency Ordinance No. 578U establishing regulations for installations of wireless telecommunications facilities in the public rightof-way (ROW). A substantially-similar ordinance is now being brought forth for a first reading. The City s current regulations in the Rancho Palos Verdes Municipal Code (RPVMC) are very limited and lack needed criteria for governing wireless installations in the public ROW. There are a substantial number of existing wireless facilities in the City and the City has received a plethora of requests for additional wireless facility installations. In an effort to better manage ROW installations and protect the aesthetics of the City and adjacent private property values, the proposed ordinance implements all new regulations and procedures for wireless installations in the ROW. BACKGROUND AND DISCUSSION: Public Outreach and Engagement: 1. Workshops On December 7, 2015, the City held a public workshop to discuss the first draft of the urgency ordinance. As further described in the previous Staff report (Attachment B), in response to comments made at the workshop, the urgency ordinance was revised prior to its adoption on January 19, On February 1, 2016, the City held a second workshop and invited members of the community and wireless telecommunications industry to present their concerns, thoughts or questions about the proposed ordinance. There were many residents and one City Councilmember present. There were also representatives of Verizon, Crown Castle, AT&T and Southern California Gas in attendance. Community members had several questions addressed regarding the applicability of the code as installations are proposed. The industry representatives were able to comment regarding some of the concerns raised. 2. Comments Received Since the first workshop held in December, the City has received a number of comment letters. To the extent that City staff and the City Attorney s Office found it appropriate, changes based upon these comments were made to the urgency ordinance prior to its adoption on January 19, All of these comment letters are included in Attachment B. 3

4 Prior to the second workshop in February, the City received one comment letter from the California Wireless Association (CalWa), an industry trade group (Attachment E). On February 8, 2016, the City received a comment letter from attorneys representing Verizon Wireless (see Attachment J). On February 14, 2016, the City received an from a resident with some remaining concerns (Attachment J). In response to the issues raised since adoption of the urgency ordinance, some further changes have been made to the ordinance as depicted in the attached redline draft (Attachment G) 3. Communication and Transparency After the public workshop, staff communicated with interested individuals via by responding to questions and requests for information. On Thursday, January 7, 2016, Staff created and publicized a dedicated webpage focusing on cell-site activity, applications, permits, and site status ( This webpage serves as a portal of cell-site information that allows the public to be fullyinformed about proposed and active cell-site activity. Federal and State Law: In the Staff report dated January 19, 2016, the City Attorney s Office addressed the legal background relates to wireless telecommunications installations in the ROW. See Attachment B for a detailed legal discussion. New Ordinance Requirements: 1. New Permits Established Pursuant to the new ordinance, there are three new permits established. Both residents and industry representatives at the public workshops expressed support for a tiered permit system, with a relatively streamlined process for preferred designs in preferred locations. First, a Major Wireless Telecommunications Facilities Permit is required unless an applicant can demonstrate that the proposal meets the requirements for an administrative permit. Should an applicant seek a Major Wireless Telecommunications Facilities Permit, said permit is subject to a public hearing before the Planning Commission. Next, if the applicant can demonstrate that the proposed installation will be located in a preferred location (e.g., not in a residential area) and can comply with all other provisions of Chapter 12.18, it may be eligible for an Administrative Wireless Telecommunications Facilities Permit. Finally, if the applicant seeks approval of five or more installations in the ROW, it can seek a Master Deployment Plan Permit. Said permit shall provide approval of all facilities provided for in the plan, and is subject to a public hearing before the Planning Commission. The same substantive standards applicable to the individual sites are applicable to Master Deployment Plan Permits; 4

5 however, applicants for a Master Deployment Plan Permit may obtain multiple approvals at a single public hearing. It should be noted that all permits shall still require the applicant to obtain any other applicable permit (e.g., encroachment permit) as may be required by the City. 2. Processing and Evaluation of Proposed Installations When a telecommunications company is interested in modifying or placing a new cell site, said applicant shall initiate the process with the Public Works Department. Staff will provide the interested party with informal instructions on how to proceed with filing an application for the proposed installation. A pre-submittal conference will be strongly encouraged so that the applicant is fully informed regarding the particulars of the proposed site and the application process. When an applicant is ready to submit a completed application, an appointment will be scheduled after receipt of a written request. The Public Works Department will process the application, but the Community Development Department and the Planning Commission will render decisions on all major wireless facility permits. After the Planning Commission s ruling is final, the Public Works Department will follow-up and close-out the permit. Proposed RPVMC Section outlines the pre-submittal and application submittal process. 3. New Provisions There are many new regulations that will be applicable to wireless installations. The following list highlights those of the most significance. a. Application Requirements Applicants seeking to install facilities in the ROW shall be required to provide the following pursuant to the new application requirements, as applicable: i. Detailed plans regarding the proposed installation ii. Justification study to support the proposed installation including an Alternative Sites Analysis iii. Completed environmental assessment application iv. Visual impact analysis v. Radio Frequency compliance report vi. Noise study vii. Traffic control plan viii. Landscape plans ix. Geographic and propagation maps x. Certificate of Public Convenience or Necessity (CPCN) or other documentation to establish right to enter the ROW. 5

6 xi. Mock-up installation notice requirements xii. A deposit for independent expert to review all submitted documents and proposals xiii. Photo simulations of existing and proposed facilities b. Notice Requirements i. As stated above, the new ordinance includes new notice provisions for all mockups ii. All requests for a Major Wireless Telecommunications Facility Permit shall be subject to a public hearing before the Planning Commission and shall require notice of the same iii. All applicants are required to notify the City in advance of any shot clock expiration c. Standards Related to Community Impacts i. Screening or camouflage design ii. New poles are discouraged iii. Installations on existing poles are limited so as to protect aesthetics iv. Accessory equipment shall be installed underground to the extent feasible v. Landscaping required where appropriate vi. Lighting limitations as allowed vii. Noise limitations d. Preferred Locations are as follows: i. Along arterial or non-local roads ii. Co-located with existing sites CONCLUSION: As discussed above, due to a substantial need for increased regulation for wireless telecommunications installations in the ROW, it is recommended the City Council adopt the attached draft ordinance. ALTERNATIVES: In addition to the Staff recommendation, the following alternative actions are available for the City Council s consideration: 6

7 1. Continue the matter to a date certain to provide time to consider additional public comments and amendments to the proposed ordinance. 7

8 Telecommunications service provided by telephone corporations. A. The city council finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service. 2. The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." 4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line." 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. B. In recognition of and in compliance with the statutory authorizations and requirements set forth above in subsection A of this section, the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the city's public rights-of-way: 1. The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, or a building permit ("ministerial permit"). 2. In addition to the information required by this Code in connection with an application for a ministerial permit, a telephone corporation must submit to the city the following supplemental information: a. A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the city's public rights-of-way. A-1

9 b. If the applicant has obtained from the CPUC a certificate of public convenience to operate as a "competitive local carrier," the following additional requirements are applicable: i. As required by Decision No of the CPUC, the applicant must establish that it has timely filed with the city a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the city during the calendar quarter in which the application is filed, which information is sufficient to enable the city to coordinate multiple projects, as may be necessary. ii. iii. If the applicant's proposed construction project will extend beyond the utility rights-ofway into undisturbed areas or other rights-of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full-scale environmental analysis by the CPUC, as required by Decision No of the CPUC. The applicant must inform the city whether its proposed construction project will be subject to any of the mitigation measures specified in the negative declaration ["Competitive Local Carriers" (CLCs) Projects for Local Exchange Communication Service throughout California] or to the mitigation monitoring plan adopted in connection with Decision No of the CPUC. The city's issuance of a ministerial permit will be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as "competitive local carriers." C. In recognition of the fact that numerous excavations in the public rights-of-way diminish the useful life of the surface pavement, and for the purpose of mitigating the adverse impacts of numerous excavations on the quality and longevity of public street maintenance within the city, the following policies and procedures are adopted: 1. The city manager is directed to ensure that all public utilities, including telephone corporations, comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, a ministerial permit that authorizes the construction of facilities within the public rights-of-way. 2. The city manager is directed to coordinate the construction and installation of facilities by public utilities, including telephone corporations, in order to minimize the number of excavations in the public rights-of-way. In this regard, based upon projected plans for street construction or renovation projects, the city manager is authorized to establish on a quarterly basis one or more construction time periods or "windows" for the installation of facilities within the public rights-ofway. Telephone corporations and other public utilities that submit applications for ministerial permits to construct facilities after a predetermined date may be required to delay such construction until the next quarterly "window" that is established by the city. D. Chapter 9.04 of Title 9 of this Code sets forth the city's regulatory requirements that apply to the installation and operation of burglar alarm devices within the city. (Ord (part), 1998) A-2

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11 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 2 public right-of-way (ROW). There are a substantial number of existing wireless facilities in the City, and the City has received a plethora of requests for additional wireless facility installations. In an effort to better manage ROW installations and protect the aesthetics of the City and adjacent property values, the draft code implements all new regulations and procedures for wireless installations in the ROW. BACKGROUND In light of numerous proposals for additional wireless facility installations in the ROW and the lack of regulations governing such facilities, there is an urgent need for the City to adopt provisions to govern all installations so as to protect the community s property values and aesthetics. New regulations are necessary to ensure safe and aesthetically appropriate design of wireless facility installations. Public Outreach and Engagement: 1. Workshop On December 7, 2015, the City held a public workshop to discuss the draft ordinance. Representatives from the Southern California Gas Company and Crown Castle, seven residents, and one City Council member attended the workshop. All parties had an opportunity to express their concerns with the existing process for evaluating proposed wireless installations in the ROW and several attendees provided comments about the ordinance. The City addressed several of those comments. Many residents expressed concern over the lack of notice relating to the installation of mock-ups. Industry representatives outlined the need for more facilities and the need for a streamlined evaluation process (Minutes of the workshop are attached hereto as Attachment C). One key comment related to the need for a tiered permitting system, subject to administrative and ministerial approvals. Specifically, the proposed tiered system would designate preferred locations for installations. Such a tiered system has been incorporated into the ordinance proposed for adoption. 2. Comments Received Since the workshop held on December 7, 2015, the City has received a number of written comment letters. To the extent City Staff and the City Attorney s Office found it appropriate, changes were made to the draft ordinance (all comment letters are attached hereto as Attachments D through G). All changes made to the draft ordinance can be seen in the redlined version of the ordinance as Attachment H. In light of the fact that this is a very nuanced area of law, it is not surprising there is some discrepancy regarding the applicability or interpretation of current case law. Nonetheless, several changes were made in response to the comments received from both the residents and the industry. 3. Communication and Transparency After the public workshop, Staff communicated with interested individuals via by responding to questions and requests for information. On Thursday, January 7, 2016, staff created and publicized a dedicated webpage that focuses on cell-site activity, / B-2 2

12 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 3 applications, permits, and site status. This webpage serves as a portal of cell-site information which allows the public to be fully-informed of proposed and active cell-site activity. DISCUSSION A. Federal and State Law: 1. Federal Law applicable to all telecommunications installations A number of Federal statutes regulate wireless communication facilities. The Telecommunications Act ( TCA ) regulates the placement, construction, and maintenance of personal wireless facilities and telecommunications services. This section focuses on the TCA limitations that affect a local entity s authority to regulate wireless communication facilities. a) Section 332(c)(7) of the Telecommunications Act Section 332 of the TCA regulates personal wireless services defined under the statute as commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services. (47 U.S.C.A. 332 et seq.) Section 332(c)(7) of the TCA generally preserves local and state authority over the regulation of telecommunications infrastructure while simultaneously limiting its scope. (Sprint Telephony PCS, L.P. v. County of San Diego (9th Cir. 2008) 543 F.3d 571, 575.) The statute says that nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. Nonetheless, Section 332(c)(7) imposes several restrictions on local authority including the following: (1) Regulations and restrictions may not unreasonably discriminate among providers of functionally equivalent services ; and (Section 332(c)(7)(B)(i)(I).) (2) [T]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (Section 332(c)(7)(B)(i)(II).) Even if local actions do not prohibit coverage or unreasonably discriminate against providers, substantial evidence must support a government decision to deny or grant permission to place, construct or modify personal wireless service facilities / B-3 3

13 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 4 i. Effective Prohibition Limitation Section 332(c)(7)(B)(i)(II) of the TCA says that the regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government [ ] shall not prohibit or have the effect of prohibiting the provision of personal wireless services. A governmental entity violates Section 332 when it: (1) imposes an outright ban on wireless services; or (2) effectively prohibits wireless services. The mere possibility of prohibiting services is insufficient to state a claim under Section 332. (Sprint Telephony PCS, L.P., supra, 543 F.3d at 576.) The Ninth Circuit has held that an effective prohibition results when local restrictions cause a significant gap coverage. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 726.) To allege that a governmental decision effectively prohibits wireless services, the complainant must show: (1) a significant gap in the applicant s in coverage; and (2) lack of potentially available and technologically feasible alternatives. (T-Mobile USA, Inc. v. city of Anacortes (9th Cir. 2009) 572 F.3d 987, 995.) [S]ignificant gap determinations are extremely fact-specific inquiries that defy any bright-line legal rule. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 727, quoting MetroPCS, Inc. v. City and County of San Francisco (9th Cir. 2005) 400 F.3d 715, 733 abrogated by T-Mobile South, LLC v. City of Roswell, Ga. (2015) 135 S.Ct. 808.) The Ninth Circuit recognizes a significant gap in one provider s network even if that area is being serviced by other providers. The second prong requires the complainant show that the selected means of closing the gap is the least intrusive option. (Metro PCS, supra, 400 F.3d at 735.) A party challenging an ordinance or policy on the grounds that it effectively prohibits telecommunications services must meet the high burden of proving that no set of circumstances exists under which the [Ordinance] would be valid. (Sprint Telephony PCS, L.P., supra, 543 F.3d at 580, quoting Salerno, U.S. v. Salerno (1987) 481 U.S. 739, 745.) 1 1 Section 253 of the Telecommunications Act: Similarly, section 253 regulates state and local ROW management policies applied to telecommunications services. The statute reads in pertinent part as follows: [N]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. [Telecommunication services is defined in the statute as the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. (47 U.S.C.A. 153(53).)] / B-4 4

14 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 5 California State law modifies the effective prohibition analysis as applied to telephone corporations in the ROW. As discussed below, state law grants CPUC-regulated telephone corporations access to the ROW subject to the local government s reasonable time, place and manner regulations. These applicants right to use the ROW arises from State law and therefore does not necessarily depend on whether a significant gap in their service exists or not. However, telephone corporations must still show that their proposed facilities are the least intrusive means when required under local regulations or when the applicant desires to assert Federal preemption under the TCA. ii. Unreasonable Discrimination Limitation As previously described, Section 332(c)(7)(B)(i)(I) states that [t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof [ ] shall not unreasonably discriminate among providers of functionally equivalent services. The two-part test in the Ninth Circuit for unreasonable discrimination is: (1) whether the plaintiff has been treated differently from other providers whose facilities are similarly situated; and (2) if there was different treatment, whether the treatment was unreasonable. (MetroPCS, Inc. v. City and County of San Francisco (9th Cir. 2005) 400 F.3d 715, 727 abrogated by T-Mobile South, LLC v. City of Roswell, Ga. (2015) 135 S.Ct. 808 [190 L.Ed.2d 679].) The Court will evaluate the structure, placement, and cumulative impact of the facilities in order to determine if two or more facilities are similarly situated. (Id.) The Ninth Circuit considers traditional zoning regulations as reasonable, such as those used to preserve the character of the neighborhood and avoid aesthetic blight. (Id. at 727.) The Court in Newpath Networks LLC v. City of Irvine, Cal. (C.D. Cal., Dec. 23, 2009, SACV JVS ANX) 2009 WL , at *20 held that Plaintiff s allegation of unreasonable discrimination was invalid because the location of each facility was substantially different in character, the amount of light posts required by each facility differed, and no evidence demonstrated the facilities were similarly situated with respect to size, meter boxes, and concealment. (Id.) iii. Substantial Evidence Needed for a Denial Section 332(c)(7)(B)(iii) of the TCA says that a government s decision to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (See also The Court in Sprint Telephony 543 F. 3d 571, 579 determined that the effective prohibition analysis under Section 332 applies to telecommunication services under Section 253. (Id. at 579.) Section 253 has essentially been harmonized with Section 332 above (Id. at 579.) In summary, under both Sections 332 and 253, a party must show that the local government action prohibited or effectively prohibited telecommunications coverage. (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 728.) / B-5 5

15 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 6 Sprint PCS Assets, L.L.C., supra, 583 F.3d at 721.) The substantial evidence standard is a traditional standard of review for agency decisions. (Newpath Networks LLC, supra, 2009 WL , at *18; See Cellular Telephone Co. v. Town of Oyster Bay (2d Cir. 1999) 166 F.3d 490, 494 [The substantial evidence standard is less than a preponderance, but more than a scintilla of evidence. ].) When a government decision is being judicially reviewed for substantial evidence, courts must decide whether: (1) the decision was authorized by local law; and (2) the decision was supported by a reasonable amount of evidence. (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 721.) The substantial evidence determination is a case-by-case analysis. In T-Mobile USA, Inc. v. City of Anacortes (9th Cir. 2009) 572 F.3d 987, 994, the Court found substantial evidence to support the government s decision based on propagation maps, mock-ups of the proposed WCFs, reports on the effects of the aesthetic values, public comments, and oral presentations. Similarly, in Newpath Networks LLC, supra, 2009 WL , at *18, the Court held that the City s decision to deny the permit was supported by substantial evidence derived from visual simulations, reports detailing aesthetic impacts, public comment, and letters and s about property values and aesthetics effects, and real estate agent opinions. 2. State Law applicable to telecommunications installations in the ROW In addition to the federal requirements and limitations outlined above, California State law regulates local authority over wireless facility deployments. The following are the State of California code provisions which govern local regulation of ROW installations and are significant to any analysis of proposed installations under the proposed ordinance. a) California Public Utilities Code Section 7901 and California Public Utilities Code ( CPUC ) allows telecommunications facilities to be installed in the ROW and case law specifically prohibits local entities from charging rent for the ROW. CPUC Section 7901 says the following: Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. The term incommode as used in the statute includes inconvenience, impeding, obstructing, or hindering the use of the public rights of way. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 723.) Thus, telephone companies do not have an absolute right to place or construct telephone facilities and / B-6 6

16 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 7 lines in the public ROWs. (City of Huntington Beach v. Public Utilities Commission of the State of California (2013) 214 Cal.App.4th 566, 590, reh'g denied (Apr. 11, 2013), review denied (June 26, 2013).) The Supreme Court in the City of Huntington Beach v. Public Utilities Commission of the State of California held that section 7901 grants a limited right to use the highways and does so only to the extent necessary for the furnishing of services to the public. (Id.) In essence, the right to construct in the public ROW is subject to a reasonableness standard the construction, placement or modification must be reasonable so as not to incommode the public right of way. (Newpath Networks LLC, supra, 2009 WL , at *15.) Section reads as follows: (a) It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed. (b) The control, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner. (c) Nothing in this section shall add to or subtract from any existing authority with respect to the imposition of fees by municipalities. Section was designed to bolster the cities abilities with regard to construction management and to send a message to telephone corporations that cities have authority to manage their construction, without jeopardizing the telephone corporations statewide franchise. [citations omitted]. (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 724.) However, Section does not grant absolute local authority over telecommunications facilities. (Newpath Networks LLC, supra, 2009 WL , at *15.) Rather, local governments may impose only reasonable time, place and manner restrictions on such facilities. (Id.) An unreasonable restriction is one that entirely prohibits or has the effect of prohibiting telephone companies in the public right of way. (Id. at 16.) The next section discusses how courts have interpreted Sections 7901 and to allow local entities to prevent the construction of telecommunication facilities on the basis of aesthetic concerns. b) The right to base decisions regarding the siting of telecommunications facilities on aesthetic concerns Several recent cases have addressed the issue of whether cities can prohibit the placement, replacement, or construction of poles in the public ROW on the basis of aesthetic concerns. Although this issue has not been decided at the state court level, the Ninth Circuit determined that local governments can deny permits for poles in the right of way for aesthetic reasons. Sprint PCS Assets was the seminal case that established a local entity s right to deny on aesthetic grounds the construction of telecommunication facilities in the ROW. In that case, a city ordinance granted it the authority to deny wireless communication facility ( WCF ) permits on the basis of adverse aesthetic impacts arising from the / B-7 7

17 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 8 proposed time, place, and manner of use of the public property. (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 720.) Pursuant to this ordinance, the city denied Sprint PCS a WCF permit. (Id.) Sprint appealed the decision and thereafter brought a civil action requesting a declaration that the city violated the TCA in denying Sprint s WCF permit on aesthetic grounds. (Id.) The Court noted the expressive, social, and aesthetic objectives that go into planning a city as follows: The experience of traveling along a picturesque street is different from the experience of traveling through the shadows of WCF, and we see nothing exceptional in the City s determination that the former is less discomforting, less troubling, less annoying, and less distressing than the latter. (Id. at 723.) The Court explained that the time, place, and manner in which companies access the public rights-of-ways can be aesthetically concerning and therefore a matter falling within the ambit of the city s authority to regulate. The Court emphasized that an aesthetic-based decision must still be supported by substantial evidence and may not prohibit the provision of wireless services. (Id.) Two years later, the Court in NextG Networks of California, Inc. v. City of Newport Beach, CA (C.D. Cal., Feb. 18, 2011, SACV DOC JCX) 2011 WL , at *6-7, held that the city was justified in denying permits to construct new poles for telecommunication facilities because degrading the aesthetic of the Pacific Coast Highway area [would] decreas[e] the public s ability to enjoy this area. (Id. at 7.) The Court found that the city s decision was supported by substantial evidence in the administrative record indicating that the aesthetic impacts would also diminish the public s enjoyment of the area and would decrease property values. (Id.) These cases demonstrate that it is now well-established in the Ninth Circuit that local entities can deny or conditionally approve construction of telecommunication facilities in the public rights of way on the basis of certain aesthetic concerns. Nonetheless, this right is not absolute. A city that invokes aesthetics as a basis for a WCF permit denial is required to produce substantial evidence to support its decision, and even if it makes that showing, its decision is nevertheless invalid if it operates as a prohibition on the provision of wireless service in violation of 47 U.S.C. 332(c)(7)(B)(i)(II). (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 725.) B. New Ordinance Requirements: 1. New Permits Established Pursuant to the new ordinance, there are three new permits established. Both residents and industry representatives at the public workshop expressed support for a tiered / B-8 8

18 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 9 permit system, with a relatively streamlined process for preferred designs in preferred locations. First, a Major Wireless Telecommunications Facilities Permit is required unless an applicant can demonstrate it meets the requirements for an administrative permit. Should an applicant seek a Major Wireless Telecommunications Facilities Permit, said permit is subject to a public hearing before the Planning Commission. Next, if the applicant can demonstrate that the proposed installation will be located in a preferred location (e.g., not in a residential area) and can comply with all other provisions of Chapter 12.18, it may be eligible for an Administrative Wireless Telecommunications Facilities Permit. Finally, if the applicant seeks approval of five or more installations in the ROW, it can seek a Master Deployment Plan Permit. Said permit shall provide approval of all facilities provided for in the plan and is subject to a public hearing before the Planning Commission. The same substantive standards applicable to the individual sites are applicable to Master Deployment Plan Permits, however applicants for a Master Deployment Plan Permit may obtain multiple approvals at a single public hearing. It should be noted that all permits shall still require the applicant to obtain any other applicable permit (e.g. encroachment permit) as may be required by the City. 2. Processing and Evaluation of Proposed Installations When a telecommunications company is interested in modifying or placing a new cell site, said applicant shall initiate the process with the Public Works Department. Staff will provide the interested party with informal instructions on how to proceed with filing an application for the proposed installation. A pre-submittal conference is strongly encouraged so that the applicant is fully informed regarding the particulars of the proposed site and application process. When an applicant is ready to submit a completed application, an appointment is scheduled after receipt of a written request. The Public Works Department will process the application, however the Community Development Department and the Planning Commission will render decisions on all major wireless facility permits. After the Planning Commission makes its ruling, the Public Works Department will follow-up and close-out the permit. Section outlines the pre-submittal and application submittal process. a. Pre-submittal Conference see section (A) b. Application submittal appointment see section (B) 3. New Provisions There are many new regulations applicable to wireless installations. The following is a highlight of those most significant. a. Application Requirements Applicants seeking to install in the ROW shall be required to provide the following pursuant to the new application requirements, as applicable: / B-9 9

19 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 10 i. Detailed plans regarding the proposed installation ii. Justification study to support the proposed installation including an Alternative Sites Analysis iii. iv. Completed environmental assessment application Visual impact analysis v. Radio Frequency compliance report vi. vii. viii. ix. Noise study Traffic control plan Landscape plans Geographic and propagation maps x. Certificate of Public Convenience or Necessity (CPCN) or other documentation to establish right to enter the ROW. xi. xii. xiii. b. Notice Requirements Mock-up installation notice requirements A deposit for independent expert to review all submitted documents and proposals Photo simulations of existing and proposed facilities i. As stated above, the new ordinance includes new notice provisions for all mock-ups ii. iii. All requests for a Major Wireless Telecommunications Faciltiy Permit shall be subject to a public hearing before the Planning Commission and shall require notice of the same All applicant s are required to notify the city in advance of any shot clock expiration c. Standards Related to Community Impacts i. Screening or camouflage design ii. iii. iv. New poles are discouraged Installations on existing poles are limited so as to protect aesthetics Accessory equipment shall be installed underground to the extent feasible v. Landscaping required where appropriate vi. vii. Lighting limitations as allowed Noise limitations / B-10 10

20 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 11 d. Preferred Locations are as follows: i. Along arterial or non-local roads ii. Co-located with existing sites CONCLUSION As detailed above, due to a substantial need for increased regulations for installations in the ROW, it is recommended the City Council adopt the attached urgency ordinance. ALTERNATIVES 1. Continue the matter to a date certain to provide time to consider public comments and amendments to the proposed ordinance. 2. Maintain the existing regulations and process for wireless installations in the ROW. Attachments A. RPVMC at section regarding wireless installations in the ROW (page 12) B. Draft of ordinance made public on December 3, 2015 (page 14) C. Minutes from the community workshop held on December 7, 2015 (page 41) D. Comment letter from Paul R. Obyle on behalf of Crown Castle (page 45) E. Comment letter from Latham & Watkins on behalf of Southern California Gas Company (page 53) F. Comment letter from Mackenzie & Albritton on behalf of Verizon Wireless (page 59) G. comments from the public (page 69) H. Redlined draft of ordinance depicting changes made since December 3, 2015 in response to comments. (page 82) I. Proposed ordinance for recommended for adoption (page 117) J. Proposed Wireless Telecommunications Application (page 149) / B-11 11

21 ORDINANCE NO. U AN URGENCY ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED WIRELESS TELECOMMUNICATIONS FACILITIES TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY A. Recitals. (i) The purpose of this Ordinance is to amend the Ccity s Municipal Code to provide uniform and comprehensive standards and regulations, along with permit requirements, for the installation of wireless telecommunications facilities in the Ccity s public right-of-way (ROW). (ii) The Ccity currently has approximately 140 wireless installations in the ROW. The Ccity has approximately 52 pending or anticipated applications for wireless installations in the ROW. (iii) The Municipal Code contains very minimal standards or regulations specifically designed to address the unique legal and/or practical issues that arise in connection with wireless telecommunications facilities deployed in the ROW. (iv) The Ccity CcCouncil finds that the lack of current standards and regulations in the Municipal Code for wireless facilities in the ROW, the substantial number of pending and anticipated applications for wireless facilities in the ROW, the inability to adopt a temporary moratorium, and the potential liabilities and negative consequences for noncompliance with state and federal regulations (including, without limitation, automatic approvals) present current and immediate threat to the public health, safety and welfare. The Ccity CcCouncil further finds and declares that the immediate implementation of the Ordinance is necessary to preserve and protect public health, safety and welfare. (v) State and federal law requires local governments to act on permit applications for wireless facilities within a prescribed time period and may automatically deem an application approved when a failure to act occurs. See 47 U.S.C. 332(c)(7)(B)(iii); 47 C.F.R et seq.; Cal. Gov t Code The Federal Communications Commission (FCC) may require a decision on certain applications in as few as 60 days. See 47 C.F.R (c)(2); see also In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd (Oct. 17, 2014) [hereinafter 2014 Report and Order ]; In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd (Nov. 18, 2009) [hereinafter 2009 Declaratory Ruling ]. Pursuant to FCC regulations, the Ccity cannot adopt a moratorium ordinance to toll the time period for review, even when needed to allow the Ccity to maintain the status quo while it reviews and revises its policies for compliance with changes in state or federal law. See 47 C.F.R (c)(3); 2014 Report and Order, 29 FCC Rcd. at 219, 265. Page 1 of / C-1

22 (vi) State and federal law have changed substantially since the Ccity last adopted regulations for wireless installation in the ROW. Such changes include modifications to shot clocks whereby the Ccity must approve or deny installations within a certain period of time. The Ccity is in immediate need of clear regulations for wireless installations in the ROW given the number of pending or anticipated applications and legal timelines upon which the Ccity must act. (vii) The ROW in the Ccity of Rancho Palos Verdes is a uniquely valuable public resource, closely linked with the Ccity s residential character and natural beauty. Whereas the reasonably regulated and orderly deployment of wireless facilities in the ROW is desirable, unregulated or disorderly deployment represents an ever-increasing and true threat to the health, welfare and safety of the community. (viii) The regulations of wireless installations in the ROW are necessary to protect and preserve the aesthetics of the city s property valuesin the community, as well as the values of properties within the Ccity, and to ensure that all wireless facilities are installed using the least intrusive means possible. (ix) On January 19, 2016, the Ccity CcCouncil of the Ccity of Rancho Palos Verdes conducted and concluded a duly noticed public hearing concerning the Municipal Code amendments contained herein as required by law and received testimony from Ccity staff and all interested parties regarding the proposed amendments. (x) The Ccity Ccouncil finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service. 2 The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." 4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line." 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public Page 2 of / C-2

23 utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. (xi) All legal prerequisites to the adoption of the Ordinance have occurred. B. Ordinance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS: SECTION 1. The facts set forth in the Recitals, Part A of this Ordinance, are true and correct. SECTION 2. Environmental Review A. The CcCity CcCouncil finds that, pursuant to CEQA Guidelines, section 15061(b)(3), it has determined with certainty that there is no possibility that this project may have a significant impact on the physical environment. This Oordinance is being enacted to bring the ccity s processing procedures into compliance with existing State and federal law. The mere synchronization of these timelines into the CcCity s zoning Oordinance is not a physical condition that will impact the environment for the purposes of the California Environmental Quality Act ( CEQA ). Therefore, this project is not subject to CEQA SECTION 3. Section of Chapter 12, Title 13 is hereby amended and replaced in its entirety to read as follows: Antennas for telecommunications services. Page 3 of / C-3

24 A. Section of Chapter of Title 17 of this Code sets forth the city's regulatory requirements relating to the siting and construction of the following categories of antennas that are commonly used in providing or receiving telecommunications services: 1. Satellite earth station antennas, (also known as "satellite dish antennas"), which are parabolic or dish-shaped antennas which are in excess of one (1) meter in diameter or devices that are designed for over-the-air reception of radio or television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. 2. Commercial antennas, which are unstaffed facilities for the transmission or reception of radio, television, and communications signals, commonly consisting of an antenna array, connection cables, a support structure to achieve the necessary elevation, and an equipment facility to house accessory equipment, which may include cabinets, pedestals, shelters, and similar protective structures. B. Notwithstanding any other provision of this chapter, Chapter of this code shall apply to siting, modification and construction of wireless telecommunication facilities, as defined therein, which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by an entity entitled to construct within the right-of-way pursuant to a franchise with the city or state law. C.B. SECTION 4. Section of Chapter 12, Title 13 is hereby repealed. SECTION 45. Chapter 18 Wireless Telecommunications Facilities in the Public Right-of-Way is hereby added to Title 12 of the Rancho Palos Verdes Municipal Code beginning at Section to read as follows: CHAPTER 18. WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the city s public right-of-way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary (1) for the preservation of the public right-of-way in the city for the maximum benefit and use of the public, (2) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the city consistent with the goals, objectives and policies of the General Plan, Page 4 of / C-4

25 and (3) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules and regulations Definitions. Accessory equipment means any equipment associated with the installation of a wireless telecommunications facility, including but not limited to cabling, generators, fans, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers. Antenna means that part of a wireless telecommunications facility designed to radiate or receive radio frequency signals. Cellular means an analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites. Code means the Rancho Palos Verdes Municipal Code. Collocation means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes. COW means a cell on wheels, which is a wireless telecommunications facility temporarily rolled in or temporarily installed. Director means the director of public works, or his or her designee. Facility(ies) means wireless telecommunications facilities. Ground-Mounted means mounted to a telecommunications tower. Modification means a change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, changes in size, shape, color, visual design, or exterior material. Modification does not include repair, replacement or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation. Monopole means a structure composed of a pole or tower used to support antennas or related equipment. A monopole also includes a monopine, monopalm and similar monopoles camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g. water tower). Mounted means attached or supported. Located within the public right-of-way includes any facility which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way. Page 5 of / C-5

26 Pole means a single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code. Public right-of-way means any public right-of-way as defined by section of this Code. Sensitive uses means any residential use, public or private school, day care, playground, and retirement facility. Telecommunications tower means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas. Utility Pole means any pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission. Wireless telecommunications facility, facility or facilities mean any facility that transmits and/or receives electromagnetic waves. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. Exceptions: The term wireless telecommunications facility does not apply to the following: (a) Government owned and operated telecommunications facilities. (b) Emergency medical care provider-owned and operated telecommunications facilities. (c) Mobile services providing public information coverage of news events of a temporary nature. (d) Any wireless telecommunications facilities exempted from this Code by federal law or state law. Wireless telecommunications services means the provision of services using a wireless telecommunications facility or a wireless telecommunications collocation facility, and shall include, but not limited to, the following services: personal wireless services as defined in the federal Telecommunications Act of 1996 at 47 U.S.C. 332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or data radio telecommunications. Page 6 of / C-6

27 Applicability. A. This chapter applies to the siting, construction or modification of any and all wireless telecommunications facilities proposed to be located in the public right-of-way as follows: 1. All facilities for which applications were not approved prior to January 19, 2016 shall be subject to and comply with all provisions of this division. 2. All facilities for which applications were approved by the city prior to January 19, 2016 shall not be required to obtain a new or amended permit until such time as a provision of this code so requires. Any wireless telecommunication facility that was lawfully constructed prior to January 19, 2016 that does not comply with the standards, regulations and/or requirements of this division, shall be deemed a nonconforming use and shall also be subject to the provisions of section All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (section ), radio frequency emissions monitoring (section ), cessation of use and abandonment (section ), removal and restoration (section ) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (section ); provided, however, that in the event a condition of approval conflicts with a provision of this division, the condition of approval shall control until the permit is amended or revoked. B. This chapter does not apply to the following: 1. Amateur radio facilities; 2. Over the Air Reception Devices ( OTARD ) antennas; 3. Facilities owned and operated by the city for its use; 4. Any entity legally entitled to an exemption pursuant to state or federal law or governing franchise agreement Wireless Telecommunications Facility Permit Requirements. A. Major Wireless Telecommunications Facilities Permit. All new wireless facilities or collocations or modifications to existing wireless facilities shall require a Major Wireless Telecommunications Facilities Permit subject to pplanning ccommission approval unless otherwise provided for in this chapter. B. Administrative Wireless Telecommunications Facilities Permit. Page 7 of / C-7

28 1. An Administrative Wireless Telecommunications Facilities Permit, subject to the ddirector s approval, may be issued for new facilities or collocations or modifications to existing facilities that meet all the following criteria: a. The proposal is not located in any location identified in section b. The proposal would not significantly impair any view from any viewing area as those terms are interpreted and applied in Code section ; and c. The proposal complies with all applicable provisions in this chapter without need for an exception pursuant to section The ddirector may, in the ddirector s discretion, refer any application for an Administrative Wireless Telecommunications Facilities Permit to the pplanning ccommission for approval. 3. In the event that the ddirector determines that any application submitted for an Administrative Wireless Telecommunications Facilities Permit does not meet the criteria this Code, the ddirector shall convert the application to a Major Wireless Facilities Permit application and refer it to the pplanning ccommission. C. Master Deployment Plan Permit. 1. Any applicant that seeks approval for five (5) or more wireless telecommunications facilities (including new facilities and collocations to existing facilities) may elect to submit an application for a Master Deployment Plan Permit subject to pplanning ccommission approval. The proposed facilities in a Master Deployment Plan shall be reviewed together at the same time and subject to the same requirements and procedures applicable to a Major Wireless Telecommunications Facilities Permit. 2. A Master Deployment Plan Permit shall be deemed an approval for all wireless telecommunications facilities within the plan; provided, however, that an individual encroachment permit shall be required for each wireless telecommunications facility. 3. After the pplanning ccommission approves a Master Deployment Plan Permit, any deviations or alterations from the approved Master Deployment Plan for an individual wireless telecommunications facility shall require either a Major Wireless Telecommunications Facilities Permit or an Administrative Wireless Telecommunications Facilities Permit, as applicable. D. Other Permits Required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required prior permits or other approvals from other city departments, or state or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required prior permits or other approvals from other city departments, state or federal agencies. Page 8 of / C-8

29 E. Eligible Applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to state or federal law, or who have entered into a franchise agreement with the city permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a wireless telecommunications facility or a wireless telecommunications collocation facility in the public right-ofway. F. Speculative Equipment Prohibited. The city finds that the practice of preapproving wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public s best interest. The city shall not approve any equipment or other improvements in connection with a Wireless Telecommunications Facility Permit when the applicant does not actually and presently intend to install such equipment or construct such improvements Application for Wireless Telecommunications Facility Permit. A. Application. 1. In addition to the information required of an applicant for an encroachment permit or any other permit required by this code, each applicant requesting approval of the installation or modification of a wireless telecommunications facility in the public right-of-way shall fully and completely submit to the city a written application on a form prepared by the director. 2. All No applicant s seeking to install a wireless antennas telecommunications facility shall not seek an encroachment permit for fiber or coaxial cable onlyan encroachment permit to install fiber only. Applicants and subsequently seek to install antennas and accessory equipment pursuant to a wireless telecommunications facility permit. The applications for all installations in the right-of-way shall simultaneously request fiber installation or other cable installation when applying for an wireless telecommunications facility permitseeking to install antennas in the right-of-way. B. Application Contents The director shall develop an application form and make it available to applicants upon request. The supplemental application form for a new wireless telecommunications facility installation in the public right-of-way shall require the following information, in addition to all other information determined necessary by the director: 1. The name, address and telephone number of the applicant, owner and the operator of the proposed facility. 2. If the applicant is an agent, the applicant shall provide a duly executed letter of authorization from the owner of the facility. If the owner will not directly provide wireless telecommunications services, the applicant shall provide a duly executed letter of authorization from the person(s) or entity(ies) that will provide those services. Page 9 of / C-9

30 3. If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner s property. 4. A full written description of the proposed facility and its purpose. 5. Detailed engineering plans of the proposed facility and related report prepared by a professional engineer registered in the state documenting the following: a. Height, diameter and design of the facility, including 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. A layout plan, section and elevation of the tower structure shall be included. b. A photograph and model name and number of each piece of equipment included c. Power output and operating frequency for the proposed antenna. d. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. e. Sufficient evidence of the structural integrity of the pole or other supporting structure as required by the city. 6. A justification study which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option. 7. Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, pole diameter, antennas, accessory equipment, access or utility easements, landscaped areas, existing utilities, adjacent land uses, and showing compliance with section Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening. 9. A completed environmental assessment application. Page 10 of / C-10

31 10. If the applicant requests an exception to the requirements of this chapter (in accordance with section ), the applicant shall provide all information and studies necessary for the city to evaluate that request. 11. An accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility, including scaled photo simulations from at least 3 different angles. 12. 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 to determine whether the facility will be categorically excluded as that term is used by the FCC. 13. For a facility 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 facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts Effective Radio 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. 14. [Reserved] 15. Copies of any documents that the applicant is required to file pursuant to Federal Aviation Administration regulations for the facility. 16. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed wireless telecommunications facility will comply with this Code including section (A)(16)(B). 17. A traffic control plan when the proposed installation is in on any street in a nonresidential zone. The city shall have the discretion to require a traffic control plan when the applicant seeks to use large equipment (e.g. crane). 18. A scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation with a discussion of how the chosen material at maturity will screen the site. 19. A written description identifying the geographic service area for the subject installation including geographic and propagation maps, that identifies the Page 11 of / C-11

32 location of the proposed facility in relation to all existing and planned facilities maintained within the city by each of the applicant, operator, and owner, if different entities,. Aas well, as the estimated number of potentially affected uses in the geographic service area. Regardless of whether a Master Deployment Plan Permit is sought, the applicant shall depict all locations anticipated for new construction and/or modifications to existing facilities, including collocation, within two years of submittal of the application. Longer range conceptual plans for a period of five years shall also be provided, if available. a. In the event the applicant seeks to install a wireless telecommunications facility to address service coverage concerns, full-color signal propagation maps with objective units of signal strength measurement that show the applicant s current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites; b. In the event the applicant seeks to address service capacity concerns, a written explanation identifying the existing facilities with service capacity issues together with competent evidence to demonstrate the inability of those facilities to meet capacity demands. 20. Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN. 21. An application fee, and a deposit for a consultant s review as set forth in paragraph E of this section in an amount set by resolution by the city ccouncil and iun accordance with California Government Code section Proof that a temporary mock-up of the facility and sign has been installed at the proposed location for a period of at least thirty (30) calendar days. a. Applicant shall obtain an encroachment permit before installing the temporary mock-up, and must remove the temporary mock-up within five (5) calendar days of receiving a written notice to remove from the director. b. When seeking the encroachment permit, the applicant shall provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation. The city shall mail a notice regarding installation of the mock-up at least five (5) business days prior to the installation. c. The mock-up shall demonstrate the height and mass of the facility, including all interconnecting cables. The applicant shall not be entitled to install the facility it intends to be installed permanently. The mock-up may consist of story poles or the like. Page 12 of / C-12

33 d. The mock-up shall include a sign that displays photo simulations depicting before and after images, including any accessory equipment cabinet, and the telephone number of the Public Works Department. e. The applicant shall be required to follow any other city practices or processes relevant to the installation of a mock-up as may be provided in a publicly accessible form or document. f. After installation of the mock-up, the applicant shall certify that the mock-up accurately represents the height and width of the proposed installation and has been installed consistent with this Code. 23. Any other information and/or studies determined necessary by the director may be required. C. Application Contents Modification of Existing Facility. The content of the application form for a modification to an existing facility shall be determined by the director, and shall include but not be limited to the requirements listed in section (B) unless prohibited by state or federal law. D. Effect of State or Federal Law Change. In the event a subsequent state or federal law prohibits the collection of any information required by section (B), the director is authorized to omit, modify or add to that request from the city s application form with the written approval of the city attorney, which approval shall be a public record. E. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: 1. Compliance with applicable radio frequency emission standards; 2. Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so; 3. The accuracy and completeness of submissions; 4. Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis; 5. The applicability of analysis techniques and methodologies; 6. The validity of conclusions reached or claims made by applicant; 7. The viability of alternative sites and alternative designs; and Page 13 of / C-13

34 8. Any other specific technical issues identified by the consultant or designated by the city. The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the city for the consultants cost Review Procedure A. Pre-submittal Conference. Prior to application submittal, the city strongly encourages all applicants to schedule and attend a pre-submittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and application materials. The pre-submittal conference is intended to identify potential concerns and streamline the formal application review process after submittal. Public Works Department staff will endeavor to provide applicants with an appointment within approximately five (5) business days after receipt of a written request. B. Application Submittal Appointment. All applications must be submitted to the city at a pre-scheduled appointment. Applicants may submit one (1) application per appointment but may schedule successive appointments for multiple applications whenever feasible as determined by the city. Ccity staff will endeavor to provide applicants with an appointment within five (5) business days after receipt of a written request. C. Notice; Decisions. The provisions in this section describe the procedures for approval and any required notice and public hearings for an application. 1. Planning Commission Hearings. Any permit application under this chapter subject to pplanning ccommission approval shall require notice and a public hearing. Notice of such hearing shall be provided in accordance with Code section The pplanning ccommission may approve, or conditionally approve, or deny an application only after it makes the findings required in section Director s Decision Notice. The ddirector may approve, or conditionally approve or deny, an application only after it makes the findings required in section Within five days after the ddirector approves or conditionally approves an application under this chapter, the ddirector shall provide notice in accordance with Code section 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 (20) days prior to the expiration. Page 14 of / C-14

35 4. Written Decision Required. All final decisions made pursuant to this chapter shall be in writing and based on substantial evidence in the written administrative record. The written decision shall include the reasons for the decision. D. Appeals. Any aggrieved person or entity may appeal a decision by the ddirector or the pplanning ccommission as provided in accordance with the provisions in Code chapter The appellate authority may hear the appeal de novo Requirements for Facilities within the Public Right-of-Way A. Design and Development Standards. All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following: 1. General Guidelines. a. The applicant shall employ screening, undergrounding and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually screened as possible, to prevent the facility from dominating the surrounding area and to minimize significant view impacts from surrounding properties all in a manner that achieves compatibility with the community and in compliance with section of this Code. b. Screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility s visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality. c. Facilities shall be located such that views from a residential structure are not significantly impaired. Facilities shall also be located in a manner that protects public views over city view corridors, as defined in the city s general plan, so that no significant view impairment results in accordance with this Code including section This provision shall be applied consistent with local, state and federal law. 2. [Reserved] 3. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. 4. Blending Methods. All facilities shall have subdued colors and non-reflective materials that blend with the materials and colors of the surrounding area and structures. Page 15 of / C-15

36 5. Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible. 6. Poles. a. Facilities shall be located consistent with section unless an exception pursuant to section is granted. b. Only pole-mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole. (For exceptions see subparagraph (h) below and sections and ) c. Utility Poles. The maximum height of any antenna shall not exceed forty-eight (48) inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than twenty-four (24) feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as may be revised or superseded. d. Light Poles. The maximum height of any antenna shall not exceed four (4) feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be no less than sixteen and a half (16 1/2) feet above any drivable road surface. e. Replacement Poles. If an applicant proposes to replace a pole in order to accommodate a proposed facility, the pole shall be designed to resemble the appearance and dimensions of existing poles near the proposed location, including size, height, color, materials and style to the maximum extent feasible. f. Pole mounted equipment, exclusive of antennas, shall not exceed six (6) cubic feet in dimension. g. [Reserved] h. An exception shall be required to place a new pole in the public right-of-way. If an exception is granted for placement of new poles in the right-of-way: i. Such new poles shall be designed to resemble existing poles in the rightof-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced. Page 16 of / C-16

37 ii. Such new poles that are not replacement poles shall be located at least ninety (90) feet from any existing pole to the extent feasible. iii. Such new poles shall not adversely impact public view corridors, as defined in the general plan, and shall be located to the extent feasible in an area where there is existing natural or other feature that obscures the view of the pole. The applicant shall further employ concealment techniques to blend the pole with said features. iv. A new pole justification analysis shall be submitted to demonstrate why existing infrastructure cannot be utilized and demonstrating the new pole is the least intrusive means possible including a demonstration that the new pole is designed to be the minimum functional height and width required to support the proposed facility. i. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible. For all wooden poles wherein interior installation is infeasible, conduit and cables attached to the exterior of poles shall be mounted flush thereto and painted to match the pole. 7. Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible. 8. Wind Loads. Each facility shall be properly engineered to withstand wind loads as required by this Code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility. 9. Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, incommode the public s use of the right-of-way, or safety hazards to pedestrians and motorists and in compliance with section so as not to obstruct the intersection visibility triangle. 10. Public Facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility. 11. Screening. All ground-mounted facility, pole-mounted equipment, or walls, fences, landscaping or other screening methods shall be installed at least eighteen (18) inches from the curb and gutter flow line. 12. Accessory Equipment. Not including the electric meter, all accessory equipment shall be located underground,; unless an exception has been granted consistent with this chapterexcept as provided below: Page 17 of / C-17

38 a. Unless city staff determines that there is no room in the public right-of-way for undergrounding, or that undergrounding is not feasible, an exception shall be required in order to place accessory equipment above-ground and concealed with natural or manmade features to the maximum extent possible. b. When above-ground is the only feasible location for a particular type of accessory equipment and will be ground-mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five (5) feet and a total footprint of fifteen (15) square feet, and shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Required electrical meter cabinets shall be screened and/or camouflaged. c. In locations where homes are only along one side of a street, above-ground accessory equipment shall not be installed directly in front of a residence. Such above-ground accessory equipment shall be installed along the side of the street with no homes. Unless said location is located within the coastal setback or the landslide moratorium area, then such locations shall be referred to the city s geotechnical staff for review and recommendations. 13. Landscaping. Where appropriate, each facility shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs. Additional landscaping shall be planted, irrigated and maintained by applicant where such landscaping is deemed necessary by the city to provide screening or to conceal the facility. 14. Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the city. 15. Lighting. a. No facility may be illuminated unless specifically required by the Federal Aviation Administration or other government agency. Beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency. b. Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers and monopoles. c. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding neighborhoods. d. Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion-sensitive light controllers and lights, and must install such lights so as to avoid illumination impacts to adjacent properties to the maximum extent feasible. The city may, in its discretion, exempt an Page 18 of / C-18

39 applicant from the foregoing requirement when the applicant demonstrates a substantial public safety need. e. The applicant shall submit a lighting study which shall be prepared by a qualified lighting professional to evaluate potential impacts to adjacent properties. 16. Noise. a. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 PM and 7:00 AM. b. At no time shall equipment noise from any facility exceed an exterior noise level of fifty-five (55) dba three (3) feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within five hundred (500) feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed forty-five (45) dba. 17. Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The director may require the provision of warning signs, fencing, anticlimbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device. 18. Modification. Consistent with current state and federal laws and if permissible under the same, at the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities. 19. The installation and construction approved by a wireless telecommunications facility permit shall begin within one (1) year after its approval or it will expire without further action by the city. B. Conditions of Approval. In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any modification of these conditions or additional conditions of approval deemed necessary by the director: Page 19 of / C-19

40 1. The permittee shall submit an as built drawing within ninety (90) days after installation of the facility. [As-builts shall be in an electronic format acceptable to the city which can be linked to the city s GIS.] 2. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the city. The permittee shall notify the city of any changes to the information submitted within thirty (30) days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following: a. Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility. b. The legal status of the owner of the wireless telecommunications facility. 3. The permittee shall notify the city in writing at least ninety (90) days prior to any transfer or assignment of the permit. The written notice required in this section must include: (1) the transferee s legal name; (2) the transferee s full contact information, including a primary contact person, mailing address, telephone number and address; and (3) a statement signed by the transferee that the transferee shall accept of all permit terms and conditions. The director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all its conditions of approval, if any. Such materials or documentation may include, but shall not be limited to: federal, state and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as-built drawings; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission. Noncompliance with the permit and all its conditions of approval, if any, or failure to submit the materials required by the ddirector shall be a cause for the city to revoke the applicable permits pursuant to and following the procedure set on in section At all times, all required notices and/or signs shall be posted on the site as required by the Federal Communications Commission, California Public Utilities Commission, any applicable licenses or laws, and as approved by the city. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans. 5. Permittee shall pay for and provide a performance bond or other form of security approved by the city attorney s office, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee s obligations under these conditions of approval and this code. The security instrument coverage shall include, but not be limited to, removal of the facility. (The amount of the security instrument shall be calculated by the applicant in its submittal documents in an amount rationally related to the Page 20 of / C-20

41 obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said security instrument. 6. If a nearby property owner registers a noise complaint, the city shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have ten (10) business days to file a written response regarding the complaint which shall include any applicable remedial measures. If the city determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose conditions on the project to achieve said objective. 7. A condition setting forth the permit expiration date in accordance with section shall be included in the conditions of approval. 8. The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the director of public works for the purpose of: (a) protecting the public health, safety, and welfare; (b) preventing interference with pedestrian and vehicular traffic; and/or (c) preventing damage to the public right-of-way or any adjacent property. The city may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the underlying permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the city by the permittee. 9. The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by section (B)(5). 10. 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 wireless telecommunications facility 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 an encroachment permit issued for any facility within the public rightof-way, 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 Page 21 of / C-21

42 other structure, improvement or property within the public right-of-way to be affected by applicant s facilities. 11. The permittee shall assume full liability for damage or injury caused to any property or person by the facility. 12. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the city engineer. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the city engineer shall cause such repair to be completed at permittee s sole cost and expense. 13. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way. 14. Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best s Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the city, and any insurance or self-insurance maintained by the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers shall be excess of permittee s insurance and shall not contribute with it. The policies of insurance required by this permit shall include provisions for waiver of subrogation. In accepting the benefits of this permit, permittee hereby waives all rights of subrogation against the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. The insurance must afford coverage for Page 22 of / C-22

43 the permittee s and the wireless provider s use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the city s risk manager. Before issuance of any building permit for the facility, the permittee shall furnish the city risk manager certificates of insurance and endorsements, in the form satisfactory to the city attorney or the risk manager, evidencing the coverage required by the city. 15. Permittee shall defend, indemnify, protect and hold harmless city, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the city, and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers to attack, set aside, void or annul, an approval of the city, planning commission or city council concerning this permit and the project. Such indemnification shall include damages of any type, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The city shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit city from participating in a defense of any claim, action or proceeding. The city shall have the option of coordinating the defense, including, but not limited to, choosing counsel after consulting with permittee and at permittee s expense. 16. Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney s fees, interest and expert witness fees), or damages claimed by third parties against the city for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the wireless telecommunications facility, or to any work done by or use of the public right-ofway by the permittee, owner or operator of the wireless telecommunications facility, or their agents, excepting only liability arising out of the sole negligence or willful misconduct of the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. 17. Should the utility company servicing the facility with electrical service that does not require the use of an above ground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within ninety (90) days of such service being offered and reasonably restore the area to its prior condition. An extension may be granted if circumstances arise outside of the control of the permittee. Page 23 of / C-23

44 18. Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to city, if and when made necessary by (i) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or above ground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency, (ii) any abandonment of any street, sidewalk or other public facility, (iii) any change of grade, alignment or width of any street, sidewalk or other public facility, or (iv) a determination by the director of public works that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public s use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within ninety (90) days of notification by city unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a modified permit pursuant to the Code including applicable notice and hearing procedures. The permittee shall be entitled, on permittee s election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Code allow. In the event the facility is not modified, removed, or relocated within said period of time, city may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances including those of immediate or imminent threat to the public s health and safety, the city may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter. 19. Permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the wireless telecommunications facility permit within thirty (30) days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the city within said thirty (30) day period. 20. Prior to the issuance of any encroachment, permittee may be required to enter into a right-of-way agreement with the city in accordance with Section Permittee shall include the applicant and all successors in interest to this permit Findings. No permit shall be granted for a wireless telecommunications facility unless all of the following findings are made by the director: A. All notices required for the proposed installation have been given. B. The proposed facility has been designed and located in compliance with all applicable provisions of this chapter. Page 24 of / C-24

45 C. If applicable, the applicant has demonstrated its inability to locate on existing infrastructure. D. The applicant has provided sufficient evidence supporting the applicant s claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise agreement with the city permitting them to use the public right-of-way. E. The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible and 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 available [Section Reserved] Nonexclusive grant. No permit or approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the city for any purpose whatsoever. Further, no approval shall be construed as any warranty of title Emergency Deployment. A COW shall be permitted for the duration of an emergency declared by the city or at the discretion of the director Operation and Maintenance Standards. All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards. A. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within forty-eight (48) hours: 1. After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or 2. After permittee, owner, operator or any designated maintenance agent receives notification from the city. B. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ( contact information ). Contact information shall be updated within seven (7) days of any change. Page 25 of / C-25

46 C. All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of: 1. General dirt and grease; 2. Chipped, faded, peeling, and cracked paint; 3. Rust and corrosion; 4. Cracks, dents, and discoloration; 5. Missing, discolored or damaged artificial foliage or other camouflage; 6. Graffiti, bills, stickers, advertisements, litter and debris; 7. Broken and misshapen structural parts; and 8. Any damage from any cause. D. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the director. E. The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation. F. Each facility shall be operated and maintained to comply at all conditions of approval. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the same and the standards set forth in this chapter RF Emissions and Other Monitoring Requirements. The owner and operator of a facility shall submit within ninety (90) days of beginning operations under a new or amended permit, and every five years from the date the facility began operations, a technically sufficient report ( monitoring report ) that demonstrates the following: A. The facility is in compliance with applicable federal regulations, including Federal Communications Commission RF emissions standards, as certified by a qualified radio frequency emissions engineer; B. The facility is in compliance with all provisions of this section and its conditions of approval. Page 26 of / C-26

47 No Dangerous Condition or Obstructions Allowed No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location Permit Expiration. A. Unless Government Code section 65964, as may be amended, authorizes the city to issue a permit with a shorter term, a permit for any wireless telecommunications facility shall be valid for a period of ten (10) years, unless pursuant to another provision of this Code it lapses sooner or is revoked. At the end of ten (10) years from the date of issuance, such permit shall automatically expire. B. A permittee may apply for a new permit within one hundred and eighty (180) days prior to expiration. Said application and proposal shall comply with the city s current code requirements for wireless telecommunications facilities Cessation of Use or Abandonment A. A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for ninety (90) or more consecutive days unless the permittee has obtained prior written approval from the director of public works which shall not be unreasonably denied. If there are two (2) or more users of a single facility, then this provision shall not become effective until all users cease using the facility. B. The operator of a facility shall notify the city in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten (10) days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the director of any discontinuation of operations of thirty (30) days or more. C. Failure to inform the director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for: 1. Litigation; 2. Revocation or modification of the permit; Page 27 of / C-27

48 3. Acting on any bond or other assurance required by this article or conditions of approval of the permit; 4. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner s expense; and/or 5. Any other remedies permitted under this Code Removal and Restoration Permit Expiration, Revocation or Abandonment A. Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the city. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the city. The facility shall be removed from the property, at no cost or expense to the city. B. Failure of the permittee, owner or operator to promptly remove its facility and restore the property within ninety (90) days after expiration, earlier termination or revocation of the permit, or abandonment of the facility, shall be a violation of this Code. Upon a showing of good cause, an extension may be granted by the director of public works where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for: 1. Prosecution; 2. Acting on any security instrument required by this chapter or conditions of approval of permit; 3. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner s expense; and/or 4. Any other remedies permitted under this Code. C. Summary Removal. In the event the director or city engineer determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-ofway, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, exigent circumstances ), the director or city engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five (5) business days of removal and all property removed shall be preserved for the owner s pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to Page 28 of / C-28

49 pick-up the property within sixty (60) days, the facility shall be treated as abandoned property. D. Removal of Facilities by city. In the event the city removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the city for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the city may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this Code. Unless otherwise provided herein, the city has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the city destroys any such facility not timely removed by the permittee, owner or operator after notice, or removed by the city due to exigent circumstances Exceptions. A. The city ccouncil recognizes that federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services and the applicant proposes the least intrusive means to provide such services. The city ccouncil finds that, due to wide variation among wireless facilities, technical service objectives and changed circumstances over time, a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. The city ccouncil further finds that circumstances in which an effective prohibition may occur are extremely difficult to discern, and that specified findings to guide the analysis promotes clarity and the city s legitimate interest in well-planned wireless facilities deployment. Therefore, in the event that any applicant asserts that strict compliance with any provision in this chapter, as applied to a specific proposed personal wireless services facility, would effectively prohibit the provision of personal wireless services, the pplanning ccommission may grant a limited, one-time exemption from strict compliance subject to the provisions in this section B. Required Findings. The Pplanning ccommission shall not grant any exemption unless the applicant demonstrates with clear and convincing evidence all the following: 1. The proposed wireless facility qualifies as a personal wireless services facility as defined in United States Code, Title 47, section 332(c)(7)(C)(ii); 2. The applicant has provided the city with a clearly defined technical service objective and a clearly defined potential site search area; 3. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why any alternative location(s) or design(s) suggested by the city or otherwise identified in the administrative record, including but not Page 29 of / C-29

50 limited to potential alternatives identified at any public meeting or hearing, are not technically feasible or potentially available; and 4. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why the proposed location and design deviates is the least noncompliant location and design necessary to reasonably achieve the applicant s reasonable technical service objectives. C. Scope. The pplanning ccommission shall limit its exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The Pplanning ccommission may adopt conditions of approval as reasonably necessary to promote the purposes in this chapter and protect the public health, safety and welfare. D. Independent Consultant. The city shall have the right to hire, at the applicant s expense, an independent consultant to evaluate issues raised by the exception and to submit recommendations and evidence in response to the application Location Restrictions. Locations Requiring an Exception. Wireless telecommunications facilities are strongly disfavored in certain areas. Therefore the following locations are permitted when an exception has been granted pursuant to section : A. Public right-of-way of local streets as identified in the general plan if within the residential zones; B. Public right-of-way if mounted to a new pole that is not replacing an existing pole in an otherwise permitted location Effect on Other Ordinances. Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this Code. In the event of a conflict between any provision of this division and other sections of this Code, this chapter shall control State or Federal Law. A. In the event it is determined by the city attorney that state or federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, such requirement shall be deemed severable and all remaining regulations shall remain in full force and effect. Such a determination by the city attorney shall be in writing with citations to legal authority and shall be a public record. For those facilities, in lieu of a minor conditional use permit or a conditional use permit, a ministerial permit shall be required prior to installation or modification of a wireless telecommunications facility, and all provisions of this division shall be applicable to any such facility with the exception that the required permit shall be reviewed and administered as a ministerial permit by the director rather than as a discretionary Page 30 of / C-30

51 permit. Any conditions of approval set forth in this provision or deemed necessary by the director shall be imposed and administered as reasonable time, place and manner rules. B. If subsequent to the issuance of the city attorney s written determination pursuant to (A) above, the city attorney determines that the law has changed and that discretionary permitting is permissible, the city attorney shall issue such determination in writing with citations to legal authority and all discretionary permitting requirements shall be reinstated. The city attorney s written determination shall be a public record. C. All installations permitted pursuant to this chapter shall comply with all federal and state laws including but not limited to the American with Disabilities Act Nonconforming Wireless Telecommunications Facilities in the Right-of-Way A. Nonconforming wireless telecommunications facilities are those facilities that do not conform to this chapter. B. Nonconforming wireless telecommunications facilities shall, within ten (10) years from the date such facility becomes nonconforming, be brought into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this Code at such time, to the extent the city can require such compliance under federal and state law. C. An aggrieved person may file an appeal to the city council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten (10) year amortization period is not reasonable as applied to a particular property, the city council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property. SECTION 56. Section of Chapter 96, Title 17 is amended and replaced in its entirety to read as follows: "Commercial antenna" means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, "commercial purposes" shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). "Commercial antennas" shall not include antennas owned or operated by governmental agencies. Page 31 of / C-31

52 SECTION 67. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Oordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this Oordinance. The Ccity CcCouncil hereby declares that it would have adopted this Oordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 78. Effective Date. This Oordinance shall go into effect immediately. SECTION 89. Certification. The Ccity Cclerk of the Ccity of Rancho Palos Verdes shall certify to the passage and adoption of this Oordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. PASSED, APPROVED AND ADOPTED this day of 2016, by the following vote to wit: Ken Dyda Mayor ATTEST: Carla Morreales Ccity Clerk APPROVED AS TO FORM: David J. Aleshire Ccity Attorney Page 32 of / C-32

53 MEETING MINUTES WIRELESS ANTENNA PUBLIC WORKSHOP #2 MONDAY FEBRUARY 2, :00 PM City of Rancho Palos Verdes City Hall Community Room ATTENDEES: City Residents; Representatives from: Crown Castle, Verizon, AT&T, Southern California Gas; Christy Marie Lopez (City Attorney s Office); Tripp May (Telecom Law Firm); Jerry Duhovic (Councilman), Nicole Jules (RPV), Charles Eder (RPV) The purpose of the meeting is to publicly discuss the urgency ordinance and to receive additional comments from the public and representatives of the telecom community. The Wireless Telecommunications Ordinance was presented to and adopted by the City Council on Tuesday, January 19, 2016 as an Urgency Ordinance. The Urgency ordinance and draft application, is an initial step to address issues regarding the process of proposing and installing these facilities throughout the City. The revised draft ordinance introduces additional problematic requirements that conflict with federal and state law. These conflicts are exacerbated in the revised ordinance. The process of notification and public involvement is also pertinent in this discussion. The comments received at this meeting will be incorporated and presented to the City Council as a regular ordinance. Assistant City Attorney Lopez provided introductions and opening remarks then proceeded with receiving comments from the public. COMMUNITY COMMENTS: General Mr. Jeff Calvagna stated that the new ordinance, adopted on 1/19/16, is a direct response to decades of abusive tactics by the telecommunications industry. It is better than what was in place before. The new ordinance is not perfect but fantastic and comprehensive. There are few things that need tweaking. Mr. Jay Thomas questioned the specifics of the ordinance and wanted to know what was included. He wanted to ensure that residents had an opportunity to challenge the proposal before a mock-up is constructed. He also wanted to make sure the ordinance provides for public comments prior to the permanent site being installed. Assistant City Attorney Christy Lopez confirmed the elements of the Ordinance and emphasized the Planning Commission s role in the approval process. She Wireless Communications Workshop #2 February 1, 2016 Page 1 of 6 D-1

54 also confirmed that there will be an appeal s process for administratively approved applications. Mr. John Freeman expressed a desire for the ordinance to have provisions for the process to stop before a final decision is made on an application. Mr. Louis Fraix stated that the ordinance is a good ordinance. Crown Castle has completed a lot of work. He was informed by the City Inspector that Crown Castle would be replacing the street light. Residents were alarmed in December when they were asked to sign an acknowledgement sheet. The Public Works Inspector conducted this outreach during the Holiday break when City Hall was closed. Residents did not get responses immediately from the City during this time, as City Hall was closed. There is concern about the physical distance between antennas. Some are concerned that some sites are located too close together. There should be a way to regulate density of these antennas. Minimum distance between antenna sites should be specifically shown in the ordinance. Question the need for two antennas 200 yards apart and new poles looking different. There are still new poles that no one in the neighborhood knew about. Residents want to ensure that the process includes provisions for aesthetic compatibility and that all associated utility boxes go underground. Assistant City Attorney Lopez remarked that Carriers are allowed to be in the public right of way and that the City is limited in our regulatory position due to topography and terrain. Mr. John Freeman questioned when the meeting minutes from this meeting will be available. He would like the minutes available in two days. Further, Mr. Freeman expressed that the information currently on the Cell Site webpage needs updating and he requests staff to perform weekly updates. Deputy Director Jules responded that the City will complete and publish the meeting minutes on the City s website by early next week. She also committed to ensuring that the cell site webpage will be updated regularly with all known information. For example, the spreadsheet was placed on the website as another step to inform the public of all the proposed cell sites in the City. Residents are able to view them once a proposed site is added to the list. Residents commented that they want to see more detail on the initial draft of the spreadsheet. The notes should be more detailed and straightforward (i.e. expound on the term Resident Outreach Pending ). All the photo simulations should also be included in each sight. The industry s comments should also be included in the website. Deputy Director Jules committed to posting all relevant Wireless Communications Workshop #2 February 1, 2016 Page 2 of 6 D-2

55 information regarding a proposed site to the website. She also committed to sending out a Listserve Notification when an application is received. Assistant City Attorney Lopez reiterated that City is limited to federal regulations. City can regulate only time, place, and manner in which antennas are installed. Collocation is the preferred method. City can review how it looks. Assistant City Attorney Lopez stated, the applicant can suggest that there is a significant gap in coverage, but this is hard to quantify. City can rely on the aspect of least intrusive means (to close the gap). City can force a better alternative, as long as it is technically feasible. A resident expressed concerns regarding Crown Castle splitting up applications and constructing the fiberportion of the work first without informing the City that a proposed cell site would follow. This is what occurred on Valley View Road. The residents were very upset. How do we prevent this from happening again and how are we coordinating with our neighboring Cities? Assistant City Attorney Lopez stated in terms of recent installations, splitting applications between fiber installation and cell sites will be discontinued. Applicant must disclose if fiber installation is part of a proposed cell site. The process will now involve placing the proposed sites on the City Website once they are initially submitted. Prior to mock-up, the notice will go out to everyone subscribed on the Listserve, and mailed (within 5 days) to residents within 500 feet of the proposed site. Mock-Up will last for 30 days. Residents asked about the City revenue made from cell sites. Crown Castle pays about $500 per cell site on City infrastructure plus 5% of the gross revenue for that site to the City, a voluntary agreement in place by NextG (the company that was bought-out by Crown Castle). Ms. Marita Daly expressed that aesthetics is important and that the residents want something that looks good. She asked who will decide on the aesthetics. Better aesthetic review process was requested. Residents would like a consistent look. Assistant City Attorney Lopez responded that one opinion from one resident may be completely different from another s. It is a very subjective opinion. Residents also want to know about RF signals coming from outside the City. They are requesting that neighboring Cities coordinate with each other so that all affected residents, no matter the municipal boundary is notified. Neighbors want everything underground, no big boxes on the sidewalk. Wireless Communications Workshop #2 February 1, 2016 Page 3 of 6 D-3

56 Residents opposed to the idea of permament mock-ups. The idea that something is built, even if it is a mock-up, feels like it s a done deal. The City is no longer allowing this practice. COMMENTS FROM VERIZON (Leslie Daigle): Representative hopes to also relay or echo communication from AT&T, whose representative left the workshop early on. Verizon agrees that no notification fuels anxiety. Upfront notification is reasonable. All industry companies are challenged by the unique geography of the City and the hilly terrain presents difficulty on minimizing sites. Main points to consider: o State Law authorized telecommunication companies to put facilities in Public Right-of-Way; o Local jurisdiction can only control Time, Place, and Manner. Verizon does not believe that Cities can stop State and Federal Laws;Nor does Verizon feel that the Cities can force telecoms to protect views. o Similar to other utilities, Verizon would like telecommunications applications to be regulated by the Public Works department and not the Planning Commission; o Verizon Wireless does not need to demonstrate the need for a right-ofway facility. State law authorizes Verizon Wireless s use of the right-ofway for placement of telephone equipment. The City must strike new requirements to provide evidence regarding coverage and/or capacity gaps. ( (B)(6), (B)(19)) o The City is limited to reasonable time, place and manner regulation of the right-of-way and may not require evaluation of alternatives outside of the right-of-way ( (B)(6)) or protect private views ( (A)(1)(c)). o Finding regarding least intrusive means exceeds City s authority. Least intrusive means is only relevant when a wireless carrier claims a prohibition of service by a local jurisdiction in federal court, and it should not be required for approval if a proposed facility meets reasonable ordinance criteria. Wireless carriers cannot be held to this standard where other public utilities using the right-of-way are not and such discrimination would violate state law. ( (E)) o Placement of right-of-way wireless facilities, like any other utility, should be regulated through the Department of Public Works, not by the Planning Commission, as provided in the initial draft ordinance. ( (A)) Neither the Director of Public Works nor the Planning Commission should be placed in the judicial role of evaluating federal court concepts of significant gap and least intrusive means. ( ) Wireless Communications Workshop #2 February 1, 2016 Page 4 of 6 D-4

57 COMMENTS FROM CROWN CASTLE (Attorney Paul O Boyle): Crown Castle (Crown) always tries to go to Utility Right-of-Way. It is a cleaner option and they have the right to do it. Crown is following the agreement entered into by their former NextG ($500/ city pole). There WILL be a proliferation of cell sites. It s coming and everyone needs to work together. State rights grant the companies the use of Right-of-Way. The City can t stop it, the industry and the public will just need to work together and Crown will work with the public. They want to be less obstructive. Crown knows that Visual Blight is the big issue. The intent is to try to collocate within the Right-of-Way. Crown is using micro-cells which takes sites in relation to one big monopole. Crown requests that the City tell them what is an acceptable design (preapproved installation configuration). Crown is willing to show options, and see how they look like. CPUC says Electric companies can do whatever they want. City and Public are limited as to what they can do. Telecommunications companies are at a disadvantage, but are willing to work with the public. Crown has legal objections to the code and has communicated them with the City through the City Attorney s Office. OPEN DIALOGUE SESSION: Residents asked that companies come in with concepts more reasonable, no steamrolling the City and public. Residents are not happy about telecom companies laying fiber without telling the City the intent. Residents still want to see these antennas on private property. But it will entail acquiring landlord rights and industry will lean on state and federal regulations to install in the public right-of-way. One resident doesn t like the eye-level propagation of a proposed site in his neighborhood. Is Crown Castle willing to modify this site, for one resident? The process still needs to be refined. The next City Council meeting is February 16 th. An update to the Ordinance, based on the comments received tonight will be presented then. Assistant City Attorney Lopez provided closing remarks and outlined the next steps: o City will look at legal objections to the proposed ordinance from the telecommunications companies o We will continue to receive public comments Wireless Communications Workshop #2 February 1, 2016 Page 5 of 6 D-5

58 o We will be presenting an updated ordinance to the City Council on 2/16/16. o We will also present some antennae configurations to the City Council for consideration. o Staff will provide a link to sample antennae configurations o Staff will update the cell site status spreadsheet on the City s website. Wireless Communications Workshop #2 February 1, 2016 Page 6 of 6 D-6

59 The California Wireless Association February 1, 2016 City of Rancho Palos Verdes Hawthorne Blvd Rancho Palos Verdes, CA Re: ROW Wireless Telecommunications Ordinance To Whom It May Concern: The California Wireless Association (CalWA) has been given the opportunity to provide feedback on the urgency ordinance relating to the installation of wireless telecommunications facilities in the public right-of-way (ROW). We at CalWA appreciate this opportunity and would like to add the following comments. As a general matter, the referenced ordinance discourages deployment of wireless infrastructure in the ROW. This is in contrast to the growing trend in most municipalities, as well as at the federal level and at the state level in California. As Section (A) of the RPV ordinance indicates, federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services. Recognizing that new Wireless Telecommunication Facilities (WTF) must receive approval in some form, the trend in recent ordinances throughout California is to encourage deployment in the ROW. This is done through streamlined processes and a reduction in application requirements. The RPV ordinance, however, enacts significant restrictions and hurdles to deployments in the ROW, as well as uncertainty as to whether an application will be processed administratively or through planning commission approval. Specifically, the most difficult and burdensome portions of the ordinance which are unnecessarily restrictive to the deployment of new wireless facilities include the following: (B)(1)(c), (B(2)- By requiring that a that a proposed WTF be processed administratively only if it complies with all chapters of the ordinance while also allowing discretion to refer the same application to the Planning Commission, the City is harming the industry's ability to plan proposed facilities as to timelines and certainty. The more typical ordinance which encourages WTF deployments in the ROW will allow for more certain deployment through an administrative processso long as a few key factors, such as size and aesthetics, are adhered to. E-1

60 The California Wireless Association (F)- Prohibiting speculative equipment does not seem to advance any City objectives, while removing an option for a quicker installation of wireless facilities. Speculative equipment can be made to go through the same approval process as a carrier specific deployment, so the City's interests can be protected during the application and review. An approved site without a carrier, however, offers a significantly more certain and quicker method for wireless companies to enhance their network (B)(6)- The requirement for a justification study increases the burden on the applicant while serving little City or public interest. It is well known, and generally agreed upon, that changes in technology and consumer behavior are driving a demand for more WTF's. New WTF's are generally aimed not at coverage gaps but to solve the demand for capacity that increased data consumption is driving. Put simply, a network with great coverage will still fail in a situation where too many individuals are attempting to use it. This has serious public safety implications, as even emergency calls can be disrupted by a network experiencing a lack of capacity (B)(19)- Very similar to the requirement for a justification study, the written description regarding geographic service area and propagation maps increases costs and timelines for wireless carriers, but serves little purpose in helping the City make a decision as to approve or deny a proposed facility. This requirement does not properly envision the technological needs of the public over the next decade, and is instead a manner to unnecessarily delay new facilities. CalWA instead recommends the City implement measures to protect their aesthetic concerns, while allowing for more facility deployments in a quicker timeline. Constantly changing technology needs also results in great difficulty in forecasting the facility needs over the next couple years at time of application. This is especially difficult when a carrier can not reasonably forecast whether the WTF they are applying for will be approved (B)(22)- Given the lengthy and comprehensive general application requirements of (B)(1-23), a 30 day mock up of the facility on site is additionally burdensome. The City will already have detailed engineering plans, photographs, equipment specifications, site plans, elevation plans, and visual impact analysis to help make such a decision. Respectfully Submitted, /s/ Sean Maddox Sean Maddox Regulatory Committee Co-Chair California Wireless Association E-2

61 Rancho Palos Verdes Right-of-Way Wireless Ordinance Talking Points February 1, 2016 The revised draft ordinance introduces additional problematic requirements that conflict with federal and state law. These conflicts are exacerbated in the revised ordinance. o Verizon Wireless does not need to demonstrate the need for a right-of-way facility. State law authorizes Verizon Wireless s use of the right-of-way for placement of telephone equipment. The City must strike new requirements to provide evidence regarding coverage and/or capacity gaps. ( (B)(6), (B)(19)) o The City is limited to reasonable time, place and manner regulation of the right-ofway and may not require evaluation of alternatives outside of the right-of-way ( (B)(6)) or protect private views ( (A)(1)(c)). o Finding regarding least intrusive means exceeds City s authority. Least intrusive means is only relevant when a wireless carrier claims a prohibition of service by a local jurisdiction in federal court, and it should not be required for approval if a proposed facility meets reasonable ordinance criteria. Wireless carriers cannot be held to this standard where other public utilities using the right-of-way are not and such discrimination would violate state law. ( (E)) o Placement of right-of-way wireless facilities, like any other utility, should be regulated through the Department of Public Works, not by the Planning Commission, as provided in the initial draft ordinance. ( (A)) Neither the Director of Public Works nor the Planning Commission should be placed in the judicial role of evaluating federal court concepts of significant gap and least intrusive means. ( ) F-1

62 PUBLIC COMMENTS FOR ORDINANCE AND WEBSITE: From: Thomas, Jay Sent: Friday, January 22, :20 AM To: Nicole Jules Ken Daly Tina Tsai Q. Huang Justina Krakowski design.com>; Ed Hibsman Stewart Kanemaki Tina Tsai MARYANN MEVERS Chuan Kao Cc: Christy M. Lopez Michael Throne Charles Eder Ara Mihranian Subject: RE: Public Workshop #2 Proposed Wireless Antenna Ordinance Ms. Jules Thank you. I sincerely appreciate your convening this workshop. However, there are only approximately 20 non City recipients on this notification. The potentially affected residents are far more numerous than 20, making this attempt at notification of city residents somewhat incomplete. Will this meeting notification be shared by other means, announcements or mailings distributed in neighborhoods where new installation applications have been submitted? Thank you, again. Joseph Thomas Sent: Friday, February 05, :55 PM To: PublicWorks <PublicWorks@rpvca.gov> Cc: John Freeman <jrfree@cox.net> Subject: Cell Phone Spreadsheet Dear Public Works, I was reviewing the cell phone spreadsheet and noticed an inconsistency with information presented for one of the proposed sites. Line 16 of the spreadsheet (ASG34) indicates the proposed site is located at Kings Harbor and El Rodeo, but the plans for ASG34 show the location to be Kings Harbor and Verde Ridge. The photos also match Kings Harbor and Verde Ridge. I'm not sure which site is the correct proposed location (Kings Harbor & El Rodeo or Kings Harbor & Verde Ridge) or if there was a change made to the proposed location. I just wanted to point out the inconsistency in case a correction needs to be made. David Pellicciarini 6938 Verde Ridge Rd F-2

63 PUBLIC PROTESTS AT SITES: From: Chuan Kao Sent: Monday, January 18, :39 PM To: Nicole Jules Subject: AT&T Cellular antenna project on the block of San Nicolas Drive, RPV Nicole Jules Deputy Director of Public Works City of Rancho Palos Verdes Dear Ms. Jules, It was brought to our attention that a cellular antenna is planned to be installed on the block of San Nicolas Drive. For the following reasons, we respectfully ask you to consider a relocation and do not carry out the plan: 1) It would negatively impact the property values of the stated block. 2) It would negatively affect the walking friendliness of the bock. 3) It would introduce an ugly spot into the block. Please kindly move this project to some open area of RPV. Please feel free to contact with us if there is any question. Best Regards, Chuan and Chyoung Kao San Nicolas Drive Rancho Palos Verdes, CA From: Alexander Pechloff <pechloff_a@yahoo.com> Sent: Tuesday, January 19, :58:29 PM To: CC Subject: Fwd: Cell phone tower objection Calle de Suenos Dear City Council, the Pechloff Family has been the owner of the property located at Calle de Suenos, Rancho Palos Verdes, since Over many decades we have cherished the upscale, aesthetically pleasing, and environmentally conscious neigborhood. Just recently, it has come to our attention that a new transponder equipped lamp post is planned to be installed on our block to serve as a cell phone tower. We are very concerned that the cell phone tower will substantially reduce the neighborhood's appeal: The current cell phone coverage is adequate for a low traffic residential neighborhood and the exposure to electro magnetic radiation is kept minimal. Any improvement in coverage does not warrant the residents increased exposure. F-3

64 The new cell phone tower will be visually obtrusive, as it is taller than the current lamp posts and is equipped with external transponders, transformers, and wiring. All other utilities and telecommunications, on the other hand, are underground. The loss in property value and commandable rent is incalculable. Information about this project has been sparsely provided to residents/owners in an "under the radar" approach. Thus, we strongly object to the planned installation of a cell phone tower on our block. Sincerely, Alexander Pechloff. Attorney in fact for Elisabeth Pechloff, Trustee of the Jakob Pechloff and Elisabeth Pechloff Survivor's Trust & Bypass Trust (Owner). From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net] Sent: Sunday, January 31, :12 PM To: Nicole Jules <NicoleJ@rpvca.gov> Cc: Charles Eder <CharlesE@rpvca.gov> Subject: Cell site applications in October 2015 Nicole I recently filed a PRA for encroachment permit list for the last six months. I noticed the October 2015 report states: "Cell site application Across from 3486 Seaglen Crown Castle". Is this a new application that was submitted? Is this in addition to the original application that led to the public notice posting in July 2015? If a new application was submitted for Seaglen, please provide the application and submitted drawings. If a new application was not submitted, please explain the intent of including this site under the "cell site application" category in October Note that this same October 2015 encroachment report also includes other sites such as Calle de Suenos and Basswood under "cell site application" yet the list on the new cell site webpage says "preliminary no application submitted". Please let me know if I'm misinterpreting this. Thanks, Jeff From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net] Sent: Saturday, February 06, :43 AM To: Charles Eder <CharlesE@rpvca.gov>; Nicole Jules <NicoleJ@rpvca.gov> Cc: Michael Throne <MichaelT@rpvca.gov>; clopez@awattorneys.com Subject: RE: Cell site applications in October 2015 Charles and Nicole I now have found that the newly updated cell site spreadsheet contains a link to revised drawing package for the Seaglen site. These drawings are dated as being updated on 10/19/2015, a date that coincides with the encroachment report mention of the Seaglen site I discuss below. F-4

65 I have repeatedly asked Public Works that I be notified of any developments regarding the Seaglen site yet I was never told that these documents were submitted. Why wasn't I told about these when they were received? The 150 day shot clock for the Seaglen site has expired as the application dates back to June 2015 or possibly earlier. The 30 day period for Crown Castle to take action after shot clock expiration has also passed. If Crown Castle wishes to continue to pursue this site it must restart the process. Any proposed site must be in full compliance with the documentation and site design requirements of the new ordinance. The design shown in the posted drawing package is completely unacceptable as it violates multiple aspects of the new ordinance. Jeff Calvagna From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net] Sent: Wednesday, February 03, :14 PM To: Charles Eder <CharlesE@rpvca.gov> Subject: RE: Cell site applications in October 2015 Hi Charles Please see the bottom of page 12 of the attached PDF file. It shows a listing of "cell site applications" in the Public Works October 2015 encroachment report. It includes one listed as "across from 3486 Seaglen" in addition to several other sites. I'm asking specifically: Was a new Seaglen application filed with the city in October 2015 as implied in the encroachment report?. If so, did the city accept the application? If a new application was submitted as implied, please provide the submitted documentation. This is important as the original Seaglen application (dating back to June or earlier) is older that 150 day shot clock and has also exceeded the 30 day window for Crown Castle to take action. As such, the original Seaglen application shoudl be considered expired. Also, I had asked for notification of any changes regarding the Seaglen site and was not informed of any new action in October. In addition, several other sites shown on the same list including Calle de Suenos and Basswood as having applications in October On the 1/7/2016 list posted on the transparency webpage says an application has not been submitted for these sites. I'm asking specifically: Has an application has been submitted and/or accepted by the city for any of the other sites on this October 2015 list? Please let me know if you need clarification. If applications were not submitted, I'd like to understand why the encroachment report implies that they were. Jeff F-5

66 ORDINANCE NO. U AN URGENCY AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED WIRELESS TELECOMMUNICATIONS FACILITIES TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY A. Recitals. (i) The purpose of this Ordinance is to amend the City s Municipal Code to provide uniform and comprehensive standards and regulations, along with permit requirements, consistent with State and federal law, for the installation of wireless telecommunications facilities in the City s public right-of-way (ROW). ROW ). The City currently has approximately 140 wireless installations in the ROW. (ii)the City has approximately 52 pending or anticipated applications for wireless installations in the ROW. (ii) (iii)the Municipal Code contains very minimal standards or regulations specifically designed to address the unique legal and/or practical issues that arise in connection with wireless telecommunications facilities deployed in the ROW. (iv) The City Council finds that the lack of current standards and regulations in the Municipal Code for wireless facilities in the ROW, the substantial number of pending and anticipated applications for wireless facilities in the ROW, the inability to adopt a temporary moratorium, and the potential liabilities and negative consequences for noncompliance with state and federal regulations (including, without limitation, automatic approvals) present current and immediate threat to the public health, safety and welfare. The City Council further finds and declares that the immediate implementation of the Ordinance is necessary to preserve and protect public health, safety and welfare. (iii) On January 19, 2016, the City Council held a duly noticed public hearing and adopted Urgency Ordinance No. 578U (the Urgency Ordinance ), which contained substantially similar provisions intended to address the urgent need to regulate, to the maximum extent permissible under State and federal law, wireless telecommunications facilities in the public ROW because the City had approximately 52 pending or anticipated applications for wireless telecommunications facilities in the ROW and very minimal standards or regulations specifically designed to address the unique legal and/or practical issues that arise in connection with such facilities. (iv) The City did not introduce this Ordinance at the same time that it adopted the Urgency Ordinance because it desired to afford the public and stakeholders, including representatives from the wireless services and infrastructure industry and representatives from franchised utilities and telecommunications services, to provide further comments and refinements to the Urgency Ordinance that would ultimately be adopted as this Ordinance. Page 1 of / / G-1

67 (v) On February 1, 2016, the City conducted a noticed public workshop at which the public and stakeholders, including representatives from the wireless services and infrastructure industry and representatives from franchised utilities and telecommunications services, could provide verbal comments and refinements to the proposed Ordinance. Approximately 48 people attended the work shop. Representatives from Verizon, AT&T, Southern California Gas and Crown Castle attended the workshop, but only representatives from Verizon and Crown Castle offered any comments or refinements to the proposed Ordinance. (vi) (v)state and federal law requires local governments to State and federal law have changed substantially and materially since the City last adopted regulations for wireless telecommunications facilities installation in the ROW. Such changes include (1) modifications to federal shot clocks whereby the City must act on permit applications for wireless facilities within a prescribed time period and may automatically deem an application approved when a failure to act occurs. See 47 U.S.C. 332(c)(7)(B)(iii); new and modified installations within as few as sixty (60) days after an applicant submits an application, whether complete or incomplete; (2) new State statutes and federal regulations that provide for deemed-approved or deemedgranted remedies when the City fails to act within the applicable timeframes for review; and (3) clarifications in decisional law about the City s authority to regulate aesthetics in the public ROW. See 47 C.F.R et seq.; CAL. GOV T CODE The Federal Communications Commission (FCC) may require a decision on certain applications in as few as 60 days. See 47 C.F.R (c)(2); see also ; In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd (Oct. 17, 2014) [hereinafter 2014 Report and Order ]; In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd (Nov. 18, 2009) [hereinafter 2009 Declaratory Ruling ]. Pursuant to FCC regulations, the City cannot adopt a moratorium ordinance to toll the time period for review, even when needed to allow the City to maintain the status quo while it reviews and revises its policies for compliance with changes in state or federal law. See 47 C.F.R (c)(3); 2014 Report and Order, 29 FCC Rcd. at 219, 265.; (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 726.) (vi) State and federal law have changed substantiallysince the City last adopted regulations for wirelessinstallation in the ROW. Such changes include modifications to shot clocks whereby the City must approve or deny installations within a certain period of time. The City is in immediate need of clear regulations for wireless installations in the ROW given the number of pending or anticipated applications and legal timelines upon which the City must act. (vii) The ROW in the City of Rancho Palos Verdes The public ROW in the City is a uniquely valuable public resource, closely linked with the City s residential character, civic identity and natural beauty. Whereas the reasonably regulated and orderly deployment of wireless facilities in the ROW is desirable, unregulated or disorderly deployment represents an ever-increasing and true threat to the health, welfare and safety of the community. (viii) The regulations City finds and declares that the regulation of wireless installations telecommunications facilities in the public ROW are is necessary to protect and preserve the aesthetics in the community, as well as the property values of properties within the City, and to ensure that all wireless facilities are installed using the least intrusive means possible. Page 2 of / / G-2

68 (ix) On January 19February 16, 2016, the City Council of the City of Rancho Palos Verdes conducted and concluded a duly noticed public hearing concerning the Municipal Code amendments contained herein as required by law and received testimony from City staff and all interested parties regarding the proposed amendments. The City Council then passed a motion to continue the hearing to March 1, (x) The City Council finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict market entry to or limit competition in both local and longdistance telephone service. 2 The California Public Utilities Commission ( CPUC ) is primarily responsible for the implementation of local telephone competition and it issues certificates of public convenience and necessity ( CPCN ) to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a telephone corporation as every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state. 4. Section 616 of the California Public Utilities Code provides that a telephone corporation may condemn any property necessary for the construction and maintenance of its telephone line. 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of Page 3 of / / G-3

69 telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. (xi) All legal prerequisites to the adoption of the Ordinance have occurred. B. Ordinance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS: SECTION 1. The facts set forth in the Recitals, Part A of this Ordinance, are true and correct. SECTION 2. Environmental Review. A. The City Council finds that, pursuant to CEQA Guidelines, section 15061(b)(3), it has determined with certainty that there is no possibility that this project may have a significant impact on the physical environment. The City previously adopted Urgency Ordinance No. 578U, which is currently in effect and established substantially the same processing procedures. This Ordinance is being enacted to bring the city s City s processing procedures into compliance with existing State and federal law. The Regardless whether Urgency Ordinance No. 578U had been adopted or not, to the extent that the regulations in this Ordinance involve mere synchronization of these timelines into the City s zoning Ordinance, this Ordinance is not a physical condition that will impact the environment for the purposes of the California Environmental Quality Act ( CEQA ). Therefore, this project is not subject to CEQA. SECTION 3. Section of Chapter 12, Title 13, is hereby amended and replaced in its entirety to read as follows: Antennas for telecommunications services. A. Section of Chapter of Title 17 of this Code sets forth the city's regulatory requirements relating to the siting and construction of the following categories of antennas that are commonly used in providing or receiving telecommunications services: 1. Satellite earth station antennas, (also known as satellite dish antennas ), which are parabolic or dish-shaped antennas which are in excess of one (1) meter in diameter or devices that are designed for over-the-air reception of radio or television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. 2. Commercial antennas, which are unstaffed facilities for the transmission or reception of radio, television, and communications signals, commonly consisting of an antenna array, connection cables, a support structure to achieve the Page 4 of / / G-4

70 necessary elevation, and an equipment facility to house accessory equipment, which may include cabinets, pedestals, shelters, and similar protective structures. B. Notwithstanding any other provision of this chapter, Chapter of this code shall apply to siting, modification and construction of wireless telecommunication facilities, as defined therein, which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by an entity entitled to construct within the right-of-way pursuant to a franchise with the city or state law. SECTION 4. Chapter 18 Wireless Telecommunications Facilities in the Public Rightof-Way is hereby added to Title 12 of the Rancho Palos Verdes Municipal Code beginning at Section to read as follows: CHAPTER 18. WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the city s public right-of-way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary (1) for the preservation of the public right-of-way in the city for the maximum benefit and use of the public, (2) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the city consistent with the goals, objectives and policies of the General Plan, and (3) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules and regulations Definitions. Accessory equipment means any equipment associated with the installation of a wireless telecommunications facility, including but not limited to cabling, generators, fans, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers. Antenna means that part of a wireless telecommunications facility designed to radiate or receive radio frequency signals. Cellular means an analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites. Code means the Rancho Palos Verdes Municipal Code. Page 5 of / / G-5

71 Collocation means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes. COW means a cell on wheels, which is a wireless telecommunications facility temporarily rolled in or temporarily installed. Director means the director of public works, or his or her designee. Facility(ies) means wireless telecommunications facilities. Ground-Mounted means mounted to a telecommunications tower. Modification means a change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, changes in size, shape, color, visual design, or exterior material. Modification does not include repair, replacement or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation. Monopole means a structure composed of a pole or tower used to support antennas or related equipment. A monopole also includes a monopine, monopalm and similar monopoles camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g. water tower). Mounted means attached or supported. Located within the public right-of-way includes any facility which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way. Pole means a single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code. Public right-of-way means any public right-of-way as defined by section of this Code. Sensitive uses means any residential use, public or private school, day care, playground, and retirement facility. Telecommunications tower means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas. Utility Pole means any pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission. Page 6 of / / G-6

72 Wireless telecommunications facility, facility or facilities mean any facility that transmits and/or receives electromagnetic waves. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. Exceptions: The term wireless telecommunications facility does not apply to the following: (a) Government owned and operated telecommunications facilities. (b) Emergency medical care provider-owned and operated telecommunications facilities. (c) Mobile services providing public information coverage of news events of a temporary nature. (d) Any wireless telecommunications facilities exempted from this Code by federal law or state law. Wireless telecommunications services means the provision of services using a wireless telecommunications facility or a wireless telecommunications collocation facility, and shall include, but not limited to, the following services: personal wireless services as defined in the federal Telecommunications Act of 1996 at 47 U.S.C. 332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or data radio telecommunications Applicability. A. This chapter applies to the siting, construction or modification of any and all wireless telecommunications facilities proposed to be located in the public right-of-way as follows: 1. All facilities for which applications were not approved prior to January 19, 2016 shall be subject to and comply with all provisions of this division. 2. All facilities for which applications were approved by the city prior to January 19, 2016 shall not be required to obtain a new or amended permit until such time as a provision of this code so requires. Any wireless telecommunication facility that was lawfully constructed prior to January 19, 2016 that does not comply with the standards, regulations and/or requirements of this division, shall be deemed a nonconforming use and shall also be subject to the provisions of section All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (section ), radio frequency emissions monitoring (section ), cessation of use and abandonment (section ), removal and restoration (section ) of wireless telecommunications facilities and the prohibition of Page 7 of / / G-7

73 dangerous conditions or obstructions by such facilities (section ); provided, however, that in the event a condition of approval conflicts with a provision of this division, the condition of approval shall control until the permit is amended or revoked. B. This chapter does not apply to the following: 1. Amateur radio facilities; 2. Over the Air Reception Devices ( OTARD ) antennas; 3. Facilities owned and operated by the city for its use; 4. Any entity legally entitled to an exemption pursuant to state or federal law or governing franchise agreement Wireless Telecommunications Facility Permit Requirements. A. Major Wireless Telecommunications Facilities Permit. All new wireless facilities or collocations or modifications to existing wireless facilities shall require a Major Wireless Telecommunications Facilities Permit subject to planning commission approval unless otherwise provided for in this chapter. B. Administrative Wireless Telecommunications Facilities Permit. 1. An Administrative Wireless Telecommunications Facilities Permit, subject to the director s approval, may be issued for new facilities or collocations or modifications to existing facilities that meet all the following criteria: a. The proposal is not located in any location identified in section b. The proposal would not significantly impair any view from any viewing area as those terms are interpreted and applied in Code section ; and c. The proposal complies with all applicable provisions in this chapter without need for an exception pursuant to section The director may, in the director s discretion, refer any application for an Administrative Wireless Telecommunications Facilities Permit to the planning commission for approval. 3. In the event that the director determines that any application submitted for an Administrative Wireless Telecommunications Facilities Permit does not meet the Page 8 of / / G-8

74 criteria this Code, the director shall convert the application to a Major Wireless Facilities Permit application and refer it to the planning commission. C. Master Deployment Plan Permit. 1. Any applicant that seeks approval for five (5) or more wireless telecommunications facilities (including new facilities and collocations to existing facilities) may elect to submit an application for a Master Deployment Plan Permit subject to planning commission approval. The proposed facilities in a Master Deployment Plan shall be reviewed together at the same time and subject to the same requirements and procedures applicable to a Major Wireless Telecommunications Facilities Permit. 2. A Master Deployment Plan Permit shall be deemed an approval for all wireless telecommunications facilities within the plan; provided, however, that an individual encroachment permit shall be required for each wireless telecommunications facility. 3. After the planning commission approves a Master Deployment Plan Permit, any deviations or alterations from the approved Master Deployment Plan for an individual wireless telecommunications facility shall require either a Major Wireless Telecommunications Facilities Permit or an Administrative Wireless Telecommunications Facilities Permit, as applicable. D. Other Permits Required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required prior permits or other approvals from other city departments, or state or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required prior permits or other approvals from other city departments, state or federal agencies. E. Eligible Applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to state or federal law, or who have entered into a franchise agreement with the city permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a wireless telecommunications facility or a wireless telecommunications collocation facility in the public right-of-way. F. Speculative Equipment Prohibited. The city finds that the practice of pre-approving wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public s best interest. The city shall not approve any equipment or other improvements in connection with a Wireless Telecommunications Facility Permit when the applicant does not actually and presently intend to install such equipment or construct such improvements. Page 9 of / / G-9

75 Application for Wireless Telecommunications Facility Permit. A. Application. 1. In addition to the information required of an applicant for an encroachment permit or any other permit required by this code, each applicant requesting approval of the installation or modification of a wireless telecommunications facility in the public right-of-way shall fully and completely submit to the city a written application on a form prepared by the director. 2. No applicant seeking to install wireless antennas shall seek an encroachment permit for fiber or coaxial cable only. Applicants shall simultaneously request fiber installation or other cable installation when seeking to install antennas in the right-of-way. B. Application Contents The director shall develop an application form and make it available to applicants upon request. The supplemental application form for a new wireless telecommunications facility installation in the public right-of-way shall require the following information, in addition to all other information determined necessary by the director: 1. The name, address and telephone number of the applicant, owner and the operator of the proposed facility. 2. If the applicant is an agent, the applicant shall provide a duly executed letter of authorization from the owner of the facility. If the owner will not directly provide wireless telecommunications services, the applicant shall provide a duly executed letter of authorization from the person(s) or entity(ies) that will provide those services. 3. If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner s property. 4. A full written description of the proposed facility and its purpose. 5. Detailed engineering plans of the proposed facility and related report prepared by a professional engineer registered in the state documenting the following: a. Height, diameter and design of the facility, including 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 sitebe the least visible equipment Page 10 of / / G-10

76 within the particular technology the carrier chooses to deploy. A layout plan, section and elevation of the tower structure shall be included. b. A photograph and model name and number of each piece of equipment included c. Power output and operating frequency for the proposed antenna. d. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. e. Sufficient evidence of the structural integrity of the pole or other supporting structure as required by the city. 6. A justification study which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option. 7. Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, pole diameter, antennas, accessory equipment, access or utility easements, landscaped areas, existing utilities, adjacent land uses, and showing compliance with section Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening. 9. A completed environmental assessment application. 10. If the applicant requests an exception to the requirements of this chapter (in accordance with section ), the applicant shall provide all information and studies necessary for the city to evaluate that request. 11. An accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility, including scaled photo simulations from at least 3 different angles. 12. 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 to determine whether the facility will be categorically excluded as that term is used by the FCC. 13. For a facility 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 Page 11 of / / G-11

77 proposed facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts Effective Radio 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. 14. [Reserved] 15. Copies of any documents that the applicant is required to file pursuant to Federal Aviation Administration regulations for the facility. 16. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed wireless telecommunications facility will comply with this Code including section (A)(16)(B). 17. A traffic control plan when the proposed installation is on any street in a nonresidential zone. The city shall have the discretion to require a traffic control plan when the applicant seeks to use large equipment (e.g. crane). 18. A scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation with a discussion of how the chosen material at maturity will screen the site. 19. A written description identifying the geographic service area for the subject installation including geographic and propagation maps, that identifies the location of the proposed facility in relation to all existing and planned facilities maintained within the city by each of the applicant, operator, and owner, if different entities, as well as the estimated number of potentially affected uses in the geographic service area. Regardless of whether a Master Deployment Plan Permit is sought, the applicant shall depict all locations anticipated for new construction and/or modifications to existing facilities, including collocation, within two years of submittal of the application. Longer range conceptual plans for a period of five years shall also be provided, if available. a. In the event the applicant seeks to install a wireless telecommunications facility to address service coverage concerns, full-color signal propagation maps with objective units of signal strength measurement that show the applicant s current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites; Page 12 of / / G-12

78 b. In the event the applicant seeks to address service capacity concerns, a written explanation identifying the existing facilities with service capacity issues together with competent evidence to demonstrate the inability of those facilities to meet capacity demands. 20. Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN. 21. An application fee, and a deposit for a consultant s review as set forth in paragraph E of this section in an amount set by resolution by the city council and in accordance with California Government Code section Proof that a temporary mock-up of the facility and sign has been installed at the proposed location for a period of at least thirty (30) calendar days. a. Applicant shall obtain an encroachment permit before installing the temporary mock-up, and must remove the temporary mock-up within five (5) calendar days of receiving a written notice to remove from the director. b. When seeking the encroachment permit, the applicant shall provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation. The city shall mail a notice regarding installation of the mock-up at least five (5) business days prior to the installation. c. The mock-up shall demonstrate the height and mass of the facility, including all interconnecting cables. The applicant shall not be entitled to install the facility it intends to install permanently. The mock-up may consist of story poles or the like. d. The mock-up shall include a sign that displays photo simulations depicting before and after images, including any accessory equipment cabinet, and the telephone number of the Public Works Department. e. The applicant shall be required to follow any other city practices or processes relevant to the installation of a mock-up as may be provided in a publicly accessible form or document. f. After installation of the mock-up, the applicant shall certify that the mock-up accurately represents the height and width of the proposed installation and has been installed consistent with this Code. 23. Any other information and/or studies determined necessary by the director may be required. C. Application Contents Modification of Existing Facility. The content of the application form for Page 13 of / / G-13

79 a modification to an existing facility shall be determined by the director, and shall include but not be limited to the requirements listed in section (B) unless prohibited by state or federal law. D. Effect of State or Federal Law Change. In the event a subsequent state or federal law prohibits the collection of any information required by section (B), the director is authorized to omit, modify or add to that request from the city s application form with the written approval of the city attorney, which approval shall be a public record. E. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: 1. Compliance with applicable radio frequency emission standards; 2. Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so; 3. The accuracy and completeness of submissions; 4. Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis; 5. The applicability of analysis techniques and methodologies; 6. The validity of conclusions reached or claims made by applicant; 7. The viability of alternative sites and alternative designs; and 8. Any other specific technical issues identified by the consultant or designated by the city. The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the city for the consultants cost Review Procedure A. Pre-submittal Conference. Prior to application submittal, the city strongly encourages all applicants to schedule and attend a pre-submittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and application materials. The pre-submittal conference is intended to identify potential concerns and streamline the formal application review process after submittal. Public Works Department staff will endeavor to provide applicants with an appointment within approximately five (5) business days after receipt of a written request. Page 14 of / / G-14

80 B. Application Submittal Appointment. All applications must be submitted to the city at a pre-scheduled appointment. Applicants may submit one (1) application per appointment but may schedule successive appointments for multiple applications whenever feasible as determined by the city. City staff will endeavor to provide applicants with an appointment within five (5) business days after receipt of a written request. C. Notice; Decisions. The provisions in this section describe the procedures for approval and any required notice and public hearings for an application. 1. Planning Commission Hearings. Any permit application under this chapter subject to planning commission approval shall require notice and a public hearing. Notice of such hearing shall be provided in accordance with Code section The planning commission may approve, or conditionally approve, an application only after it makes the findings required in section Director s Decision Notice. The director may approve, or conditionally approve, an application only after it makes the findings required in section Within five days after the director approves or conditionally approves an application under this chapter, the director shall provide notice in accordance with Code section 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 (20) days prior to the expiration. 4. Written Decision Required. All final decisions made pursuant to this chapter shall be in writing and based on substantial evidence in the written administrative record. The written decision shall include the reasons for the decision. D. Appeals. Any aggrieved person or entity may appeal a decision by the director or the planning commission as provided in accordance with the provisions in Code chapter The appellate authority may hear the appeal de novo Requirements for Facilities within the Public Right-of-Way A. Design and Development Standards. All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following: 1. General Guidelines. Page 15 of / / G-15

81 a. The applicant shall employ screening, undergrounding and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually screened as possible, to prevent the facility from dominating the surrounding area and to minimize significant view impacts from surrounding properties all in a manner that achieves compatibility with the community and in compliance with section of this Code. b. Screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility s visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality. c. Facilities shall be located such that views from a residential structure are not significantly impaired. Facilities shall also be located in a manner that protects public views over city view corridors, as defined in the city s general plan, so that no significant view impairment results in accordance with this Code including section This provision shall be applied consistent with local, state and federal law. 2. [Reserved] 3. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. 4. Blending Methods. All facilities shall have subdued colors and non-reflective materials that blend with the materials and colors of the surrounding area and structures. 5. Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible. 6. Poles. a. Facilities shall be located consistent with section unless an exception pursuant to section is granted. b. Only pole-mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole. (For exceptions see subparagraph (h) below and sections and ) Page 16 of / / G-16

82 c. Utility Poles. The maximum height of any antenna shall not exceed forty-eight (48) inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than twenty-four (24) feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as may be revised or superseded. d. Light Poles. The maximum height of any antenna shall not exceed four (4) feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be no less than sixteen and a half (16 1/2) feet above any drivable road surface. e. Replacement Poles. If an applicant proposes to replace a pole in order to accommodate a proposed facility, the pole shall be designed to resemble the appearance and dimensions of existing poles near the proposed location, including size, height, color, materials and style to the maximum extent feasible. f. Pole mounted equipment, exclusive of antennas, shall not exceed six (6) cubic feet in dimension. g. [Reserved] h. An exception shall be required to place a new pole in the public right-of-way. If an exception is granted for placement of new poles in the right-of-way: i. Such new poles shall be designed to resemble existing poles in the rightof-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced. ii. Such new poles that are not replacement poles shall be located at least ninety (90) feet from any existing pole to the extent feasible. iii. Such new poles shall not adversely impact public view corridors, as defined in the general plan, and shall be located to the extent feasible in an area where there is existing natural or other feature that obscures the view of the pole. The applicant shall further employ concealment techniques to blend the pole with said features including but not limited to the addition of vegetation if appropriate. iv. A new pole justification analysis shall be submitted to demonstrate why existing infrastructure cannot be utilized and demonstrating the new pole is the least intrusive means possible including a demonstration that the new pole is designed to be the minimum functional height and width required to support the proposed facility. Page 17 of / / G-17

83 i. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible. For all wooden poles wherein interior installation is infeasible, conduit and cables attached to the exterior of poles shall be mounted flush thereto and painted to match the pole. 7. Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible. 8. Wind Loads. Each facility shall be properly engineered to withstand wind loads as required by this Code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility. 9. Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, incommode the public s use of the right-of-way, or safety hazards to pedestrians and motorists and in compliance with section so as not to obstruct the intersection visibility triangle. 10. Public Facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility. 11. Screening. All ground-mounted facility, pole-mounted equipment, or walls, fences, landscaping or other screening methods shall be installed at least eighteen (18) inches from the curb and gutter flow line. 12. Accessory Equipment. Not including the electric meter, all accessory equipment shall be located underground, except as provided below: a. Unless city staff determines that there is no room in the public right-of-way for undergrounding, or that undergrounding is not feasible, an exception shall be required in order to place accessory equipment above-ground and concealed with natural or manmade features to the maximum extent possible. b. When above-ground is the only feasible location for a particular type of accessory equipment and will be ground-mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five (5) feet and a total footprint of fifteen (15) square feet, and shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Required electrical meter cabinets shall be screened and/or camouflaged. Also, while pole-mounted equipment is generally the least favored installation, should pol-mounted equipment be sought, it shall be installed as required in this Chapter. Page 18 of / / G-18

84 c. In locations where homes are only along one side of a street, above-ground accessory equipment shall not be installed directly in front of a residence. Such above-ground accessory equipment shall be installed along the side of the street with no homes. Unless said location is located within the coastal setback or the landslide moratorium area, then such locations shall be referred to the city s geotechnical staff for review and recommendations. 13. Landscaping. Where appropriate, each facility shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs. Additional landscaping shall be planted, irrigated and maintained by applicant where such landscaping is deemed necessary by the city to provide screening or to conceal the facility. 14. Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the city. 15. Lighting. a. No facility may be illuminated unless specifically required by the Federal Aviation Administration or other government agency. Beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency. b. Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers and monopoles. c. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding neighborhoods. d. Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion-sensitive light controllers and lights, and must install such lights so as to avoid illumination impacts to adjacent properties to the maximum extent feasible. The city may, in its discretion, exempt an applicant from the foregoing requirement when the applicant demonstrates a substantial public safety need. e. The applicant shall submit a lighting study which shall be prepared by a qualified lighting professional to evaluate potential impacts to adjacent properties. Should no lighting be proposed, no lighting study shall be required. 16. Noise. a. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 PM and 7:00 AM. Page 19 of / / G-19

85 b. At no time shall equipment noise from any facility exceed an exterior noise level of fifty-five (55) dba three (3) feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within five hundred (500) feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed forty-five (45) dba three (3) from the sources of the noise. 17. Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The director may require the provision of warning signs, fencing, anticlimbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device. 18. Modification. Consistent with current state and federal laws and if permissible under the same, at the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities. 19. The installation and construction approved by a wireless telecommunications facility permit shall begin within one (1) year after its approval or it will expire without further action by the city. B. Conditions of Approval. In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any modification of these conditions or additional conditions of approval deemed necessary by the director: 1. The permittee shall submit an as built drawing within ninety (90) days after installation of the facility. [As-builts shall be in an electronic format acceptable to the city which can be linked to the city s GIS.] 2. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the city. The permittee shall notify the city of any changes to the information submitted within thirty (30) days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following: a. Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility. Page 20 of / / G-20

86 b. The legal status of the owner of the wireless telecommunications facility. 3. The permittee shall notify the city in writing at least ninety (90) days prior to any transfer or assignment of the permit. The written notice required in this section must include: (1) the transferee s legal name; (2) the transferee s full contact information, including a primary contact person, mailing address, telephone number and address; and (3) a statement signed by the transferee that the transferee shall accept all permit terms and conditions. The director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all its conditions of approval, if any. Such materials or documentation may include, but shall not be limited to: federal, state and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as-built drawings; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission. Noncompliance with the permit and all its conditions of approval, if any, or failure to submit the materials required by the director shall be a cause for the city to revoke the applicable permits pursuant to and following the procedure set on in section At all times, all required notices and/or signs shall be posted on the site as required by the Federal Communications Commission, California Public Utilities Commission, any applicable licenses or laws, and as approved by the city. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans. 5. Permittee shall pay for and provide a performance bond or other form of security approved by the city attorney s office, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee s obligations under these conditions of approval and this code. The security instrument coverage shall include, but not be limited to, removal of the facility. (The amount of the security instrument shall be calculated by the applicant in its submittal documents in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said security instrument. 6. If a nearby property owner registers a noise complaint, the city shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have ten (10) business days to file a written response regarding the complaint which shall include any applicable remedial measures. If the city determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with Page 21 of / / G-21

87 the Code, the director may impose conditions on the project to achieve said objective. 7. A condition setting forth the permit expiration date in accordance with section shall be included in the conditions of approval. 8. The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the director for the purpose of: (a) protecting the public health, safety, and welfare; (b) preventing interference with pedestrian and vehicular traffic; and/or (c) preventing damage to the public right-of-way or any adjacent property. The city may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the underlying permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the city by the permittee. 9. The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by section (B)(5). 10. 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 wireless telecommunications facility 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 an encroachment permit issued for any facility within the public rightof-way, 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 to be affected by applicant s facilities. 11. The permittee shall assume full liability for damage or injury caused to any property or person by the facility. 12. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in Page 22 of / / G-22

88 which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the city engineer. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the city engineer shall cause such repair to be completed at permittee s sole cost and expense. 13. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way. 14. Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best s Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the city, and any insurance or self-insurance maintained by the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers shall be excess of permittee s insurance and shall not contribute with it. The policies of insurance required by this permit shall include provisions for waiver of subrogation. In accepting the benefits of this permit, permittee hereby waives all rights of subrogation against the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. The insurance must afford coverage for the permittee s and the wireless provider s use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the city s risk manager. Before issuance of any building permit for the facility, the permittee shall furnish the city risk manager certificates of insurance and endorsements, in the form satisfactory to the city attorney or the risk manager, evidencing the coverage required by the city. 15. Permittee shall defend, indemnify, protect and hold harmless city, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the city, and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers to attack, set aside, void or annul, an approval of the city, planning commission or city council concerning this permit and the project. Such Page 23 of / / G-23

89 indemnification shall include damages of any type, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The city shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit city from participating in a defense of any claim, action or proceeding. The city shall have the option of coordinating the defense, including, but not limited to, choosing counsel after consulting with permittee and at permittee s expense. 16. Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney s fees, interest and expert witness fees), or damages claimed by third parties against the city for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the wireless telecommunications facility, or to any work done by or use of the public right-ofway by the permittee, owner or operator of the wireless telecommunications facility, or their agents, excepting only liability arising out of the sole negligence or willful misconduct of the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. 17. Should the utility company servicing the facility with electrical service that does not require the use of an above ground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within ninety (90) days of such service being offered and reasonably restore the area to its prior condition. An extension may be granted if circumstances arise outside of the control of the permittee. 18. Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to city, if and when made necessary by (i) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or above ground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency, (ii) any abandonment of any street, sidewalk or other public facility, (iii) any change of grade, alignment or width of any street, sidewalk or other public facility, or (iv) a determination by the director that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public s use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within ninety (90) days of notification by city unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a Page 24 of / / G-24

90 modified permit pursuant to the Code including applicable notice and hearing procedures. The permittee shall be entitled, on permittee s election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Code allow. In the event the facility is not modified, removed, or relocated within said period of time, city may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances including those of immediate or imminent threat to the public s health and safety, the city may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter. 19. Permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the wireless telecommunications facility permit within thirty (30) days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the city within said thirty (30) day period. 20. Prior to the issuance of any encroachment, permittee may be required to enter into a right-of-way agreement with the city in accordance with Section Permittee shall include the applicant and all successors in interest to this permit Findings. No permit shall be granted for a wireless telecommunications facility unless all of the following findings are made by the director: A. All notices required for the proposed installation have been given. B. The proposed 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 existing infrastructure. D. The applicant has provided sufficient evidence supporting the applicant s claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise agreement with the city permitting them to use the public right-of-way. E. The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible and supported by factual evidence and a meaningful comparative analysis to show that all alternative locations and designs Page 25 of / / G-25

91 identified in the application review process were technically infeasible or not available [Section Reserved] Nonexclusive grant. No permit or approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the city for any purpose whatsoever. Further, no approval shall be construed as any warranty of title Emergency Deployment. A COW shall be permitted for the duration of an emergency declared by the city or at the discretion of the director Operation and Maintenance Standards. All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards. A. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within forty-eight (48) hours: 1. After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or 2. After permittee, owner, operator or any designated maintenance agent receives notification from the city. B. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ( contact information ). Contact information shall be updated within seven (7) days of any change. C. All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of: 1. General dirt and grease; 2. Chipped, faded, peeling, and cracked paint; Page 26 of / / G-26

92 3. Rust and corrosion; 4. Cracks, dents, and discoloration; 5. Missing, discolored or damaged artificial foliage or other camouflage; 6. Graffiti, bills, stickers, advertisements, litter and debris; 7. Broken and misshapen structural parts; and 8. Any damage from any cause. D. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the director. E. The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation. F. Each facility shall be operated and maintained to comply at all conditions of approval. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the same and the standards set forth in this chapter RF Emissions and Other Monitoring Requirements.[Reserved] The owner and operator of a facility shall submit within ninety (90) days of beginning operations under a new or amended permit, and every five years from the date the facility began operations, a technically sufficient report ( monitoring report ) that demonstrates the following: A. The facility is in compliance with applicable federal regulations, including Federal Communications Commission RF emissions standards, as certified by a qualified radio frequency emissions engineer; B. The facility is in compliance with all provisions of this section and its conditions of approval No Dangerous Condition or Obstructions Allowed No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian Page 27 of / / G-27

93 or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location Permit Expiration. A. Unless Government Code section 65964, as may be amended, authorizes the city to issue a permit with a shorter term, a permit for any wireless telecommunications facility shall be valid for a period of ten (10) years, unless pursuant to another provision of this Code it lapses sooner or is revoked. At the end of ten (10) years from the date of issuance, such permit shall automatically expire. B. A permittee may apply for a new permit within one hundred and eighty (180) days prior to expiration. Said application and proposal shall comply with the city s current code requirements for wireless telecommunications facilities Cessation of Use or Abandonment A. A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for ninety (90) or more consecutive days unless the permittee has obtained prior written approval from the director which shall not be unreasonably denied. If there are two (2) or more users of a single facility, then this provision shall not become effective until all users cease using the facility. B. The operator of a facility shall notify the city in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten (10) days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the director of any discontinuation of operations of thirty (30) days or more. C. Failure to inform the director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for: 1. Litigation; 2. Revocation or modification of the permit; 3. Acting on any bond or other assurance required by this article or conditions of approval of the permit; Page 28 of / / G-28

94 4. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner s expense; and/or 5. Any other remedies permitted under this Code Removal and Restoration Permit Expiration, Revocation or Abandonment A. Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the city. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the city. The facility shall be removed from the property, at no cost or expense to the city. B. Failure of the permittee, owner or operator to promptly remove its facility and restore the property within ninety (90) days after expiration, earlier termination or revocation of the permit, or abandonment of the facility, shall be a violation of this Code. Upon a showing of good cause, an extension may be granted by the director where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for: 1. Prosecution; 2. Acting on any security instrument required by this chapter or conditions of approval of permit; 3. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner s expense; and/or 4. Any other remedies permitted under this Code. C. Summary Removal. In the event the director or city engineer determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-of-way, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, exigent circumstances ), the director or city engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five (5) business days of removal and all property removed shall be preserved for the owner s pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick-up the property within sixty (60) days, the facility shall be treated as abandoned property. Page 29 of / / G-29

95 D. Removal of Facilities by city. In the event the city removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the city for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the city may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this Code. Unless otherwise provided herein, the city has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the city destroys any such facility not timely removed by the permittee, owner or operator after notice, or removed by the city due to exigent circumstances Exceptions. A. The city council recognizes that federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services and the applicant proposes the least intrusive means to provide such services. The city council finds that, due to wide variation among wireless facilities, technical service objectives and changed circumstances over time, a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. The city council further finds that circumstances in which an effective prohibition may occur are extremely difficult to discern, and that specified findings to guide the analysis promotes clarity and the city s legitimate interest in well-planned wireless facilities deployment. Therefore, in the event that any applicant asserts that strict compliance with any provision in this chapter, as applied to a specific proposed personal wireless services facility, would effectively prohibit the provision of personal wireless services, the planning commission may grant a limited, one-time exemption from strict compliance subject to the provisions in this section B. Required Findings. The planning commission shall not grant any exemption unless the applicant demonstrates with clear and convincing evidence all the following: 1. The proposed wireless facility qualifies as a personal wireless services facility as defined in United States Code, Title 47, section 332(c)(7)(C)(ii); 2. The applicant has provided the city with a clearly defined technical service objective and a clearly defined potential site search area; 3. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why any alternative location(s) or design(s) suggested by the city or otherwise identified in the administrative record, including but not limited to potential alternatives identified at any public meeting or hearing, are not technically feasible or potentially available; and Page 30 of / / G-30

96 4. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why the proposed location and design deviates is the least noncompliant location and design necessary to reasonably achieve the applicant s reasonable technical service objectives. C. Scope. The planning commission shall limit its exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The planning commission may adopt conditions of approval as reasonably necessary to promote the purposes in this chapter and protect the public health, safety and welfare. D. Independent Consultant. The city shall have the right to hire, at the applicant s expense, an independent consultant to evaluate issues raised by the exception and to submit recommendations and evidence in response to the application Location Restrictions. Locations Requiring an Exception. Wireless telecommunications facilities are strongly disfavored in certain areas. Therefore the following locations are permitted when an exception has been granted pursuant to section : A. Public right-of-way of local streets as identified in the general plan if within the residential zones; B. Public right-of-way if mounted to a new pole that is not replacing an existing pole in an otherwise permitted location Effect on Other Ordinances. Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this Code. In the event of a conflict between any provision of this division and other sections of this Code, this chapter shall control State or Federal Law. A. In the event it is determined by the city attorney that state or federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, such requirement shall be deemed severable and all remaining regulations shall remain in full force and effect. Such a determination by the city attorney shall be in writing with citations to legal authority and shall be a public record. For those facilities, in lieu of a minor conditional use permit or a conditional use permit, a ministerial permit shall be required prior to installation or modification of a wireless telecommunications facility, and all provisions of this division shall be applicable to any such facility with the exception that the required permit shall be reviewed and administered as a ministerial permit by the director rather than as a discretionary Page 31 of / / G-31

97 permit. Any conditions of approval set forth in this provision or deemed necessary by the director shall be imposed and administered as reasonable time, place and manner rules. B. If subsequent to the issuance of the city attorney s written determination pursuant to (A) above, the city attorney determines that the law has changed and that discretionary permitting is permissible, the city attorney shall issue such determination in writing with citations to legal authority and all discretionary permitting requirements shall be reinstated. The city attorney s written determination shall be a public record. C. All installations permitted pursuant to this chapter shall comply with all federal and state laws including but not limited to the American with Disabilities Act Nonconforming Wireless Telecommunications Facilities in the Right-of-Way A. Nonconforming wireless telecommunications facilities are those facilities that do not conform to this chapter. B. Nonconforming wireless telecommunications facilities shall, within ten (10) years from the date such facility becomes nonconforming, be brought into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this Code at such time, to the extent the city can require such compliance under federal and state law. C. An aggrieved person may file an appeal to the city council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten (10) year amortization period is not reasonable as applied to a particular property, the city council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property. SECTION 5. Section of Chapter 96, Title 17 is amended and replaced in its entirety to read as follows: "Commercial antenna" means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, "commercial purposes" shall mean communications for hire or material compensation, or the use of commercial frequencies, Page 32 of / / G-32

98 as these terms are defined by the Federal Communications Commission (FCC). "Commercial antennas" shall not include antennas owned or operated by governmental agencies. SECTION 6. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 7. Effective Date. This Ordinance shall go into effect immediatelyordinance shall be in effective on the thirtieth (30th) day after the day of its adoption. SECTION 8. Certification. The City Clerk of the City of Rancho Palos Verdes shall certify to the passage and adoption of this Ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. PASSED, APPROVED AND ADOPTED this day of 2016, by the following vote to wit: Ken DydaMayor ATTEST: Carla Morreales City Clerk APPROVED AS TO FORM: David J. Aleshire City Attorney Page 33 of / / G-33

99 Page 34 of / / G-34

100 ORDINANCE NO. AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED WIRELESS TELECOMMUNICATIONS FACILITIES TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY A. Recitals. (i) The purpose of this Ordinance is to amend the City s Municipal Code to provide uniform and comprehensive standards and regulations, along with permit requirements, consistent with State and federal law, for the installation of wireless telecommunications facilities in the City s public right-of-way ( ROW ). (ii) The Municipal Code contains very minimal standards or regulations specifically designed to address the unique legal and/or practical issues that arise in connection with wireless telecommunications facilities deployed in the ROW. (iii) On January 19, 2016, the City Council held a duly noticed public hearing and adopted Urgency Ordinance No. 578U (the Urgency Ordinance ), which contained substantially similar provisions intended to address the urgent need to regulate, to the maximum extent permissible under State and federal law, wireless telecommunications facilities in the public ROW because the City had approximately 52 pending or anticipated applications for wireless telecommunications facilities in the ROW and very minimal standards or regulations specifically designed to address the unique legal and/or practical issues that arise in connection with such facilities. (iv) The City did not introduce this Ordinance at the same time that it adopted the Urgency Ordinance because it desired to afford the public and stakeholders, including representatives from the wireless services and infrastructure industry and representatives from franchised utilities and telecommunications services, to provide further comments and refinements to the Urgency Ordinance that would ultimately be adopted as this Ordinance. (v) On February 1, 2016, the City conducted a noticed public workshop at which the public and stakeholders, including representatives from the wireless services and infrastructure industry and representatives from franchised utilities and telecommunications services, could provide verbal comments and refinements to the proposed Ordinance. Approximately 48 people attended the work shop. Representatives from Verizon, AT&T, Southern California Gas and Crown Castle attended the workshop, but only representatives from Verizon and Crown Castle offered any comments or refinements to the proposed Ordinance. (vi) State and federal law have changed substantially and materially since the City last adopted regulations for wireless telecommunications facilities installation in the ROW. Such changes include (1) modifications to federal shot clocks whereby the City must act on permit applications for new and modified installations within as few as sixty (60) days after an applicant Page 1 of / H-1

101 submits an application, whether complete or incomplete; (2) new State statutes and federal regulations that provide for deemed-approved or deemed-granted remedies when the City fails to act within the applicable timeframes for review; and (3) clarifications in decisional law about the City s authority to regulate aesthetics in the public ROW. See 47 C.F.R et seq.; CAL. GOV T CODE ; In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd (Oct. 17, 2014) [hereinafter 2014 Report and Order ]; In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd (Nov. 18, 2009) [hereinafter 2009 Declaratory Ruling ]; (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 726.) (vii) The public ROW in the City is a uniquely valuable public resource, closely linked with the City s residential character, civic identity and natural beauty. Whereas the reasonably regulated and orderly deployment of wireless facilities in the ROW is desirable, unregulated or disorderly deployment represents an ever-increasing and true threat to the health, welfare and safety of the community. (viii) The City finds and declares that the regulation of wireless telecommunications facilities in the public ROW is necessary to protect and preserve the aesthetics in the community, as well as property values within the City, and to ensure that all wireless facilities are installed using the least intrusive means possible. (ix) On February 16, 2016, the City Council of the City of Rancho Palos Verdes conducted and concluded a duly noticed public hearing concerning the Municipal Code amendments contained herein as required by law and received testimony from City staff and all interested parties regarding the proposed amendments. The City Council then passed a motion to continue the hearing to March 1, (x) The City Council finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict market entry to or limit competition in both local and longdistance telephone service. 2 The California Public Utilities Commission ( CPUC ) is primarily responsible for the implementation of local telephone competition and it issues certificates of public convenience and necessity ( CPCN ) to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a telephone corporation as every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state. 4. Section 616 of the California Public Utilities Code provides that a telephone corporation may condemn any property necessary for the construction and maintenance of its telephone line. Page 2 of / H-2

102 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. (xi) All legal prerequisites to the adoption of the Ordinance have occurred. B. Ordinance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS: SECTION 1. The facts set forth in the Recitals, Part A of this Ordinance, are true and correct. SECTION 2. Environmental Review. A. The City Council finds that, pursuant to CEQA Guidelines, section 15061(b)(3), it has determined with certainty that there is no possibility that this project may have a significant impact on the physical environment. The City previously adopted Urgency Ordinance No. 578U, which is currently in effect and established substantially the same processing procedures. This Ordinance is being enacted to bring the City s processing procedures into compliance with existing State and federal law. Regardless whether Urgency Ordinance No. 578U had been adopted or not, to the extent that the regulations in this Ordinance involve mere synchronization of these timelines into the City s zoning Ordinance, this Ordinance is not a physical condition that will impact the environment for the purposes of the California Environmental Quality Act ( CEQA ). Therefore, this project is not subject to CEQA. Page 3 of / H-3

103 SECTION 3. Section of Chapter 12, Title 13, is hereby amended and replaced in its entirety to read as follows: Antennas for telecommunications services. A. Section of Chapter of Title 17 of this Code sets forth the city's regulatory requirements relating to the siting and construction of the following categories of antennas that are commonly used in providing or receiving telecommunications services: 1. Satellite earth station antennas, (also known as satellite dish antennas ), which are parabolic or dish-shaped antennas which are in excess of one (1) meter in diameter or devices that are designed for over-the-air reception of radio or television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. 2. Commercial antennas, which are unstaffed facilities for the transmission or reception of radio, television, and communications signals, commonly consisting of an antenna array, connection cables, a support structure to achieve the necessary elevation, and an equipment facility to house accessory equipment, which may include cabinets, pedestals, shelters, and similar protective structures. B. Notwithstanding any other provision of this chapter, Chapter of this code shall apply to siting, modification and construction of wireless telecommunication facilities, as defined therein, which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by an entity entitled to construct within the right-of-way pursuant to a franchise with the city or state law. SECTION 4. Chapter 18 Wireless Telecommunications Facilities in the Public Rightof-Way is hereby added to Title 12 of the Rancho Palos Verdes Municipal Code beginning at Section to read as follows: CHAPTER 18. WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the city s public right-of-way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary (1) for the preservation of the public right-of-way in the city for the maximum benefit and use of the public, (2) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the city consistent with the goals, objectives and policies of the General Plan, Page 4 of / H-4

104 and (3) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules and regulations Definitions. Accessory equipment means any equipment associated with the installation of a wireless telecommunications facility, including but not limited to cabling, generators, fans, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers. Antenna means that part of a wireless telecommunications facility designed to radiate or receive radio frequency signals. Cellular means an analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites. Code means the Rancho Palos Verdes Municipal Code. Collocation means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes. COW means a cell on wheels, which is a wireless telecommunications facility temporarily rolled in or temporarily installed. Director means the director of public works, or his or her designee. Facility(ies) means wireless telecommunications facilities. Ground-Mounted means mounted to a telecommunications tower. Modification means a change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, changes in size, shape, color, visual design, or exterior material. Modification does not include repair, replacement or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation. Monopole means a structure composed of a pole or tower used to support antennas or related equipment. A monopole also includes a monopine, monopalm and similar monopoles camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g. water tower). Mounted means attached or supported. Located within the public right-of-way includes any facility which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way. Page 5 of / H-5

105 Pole means a single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code. Public right-of-way means any public right-of-way as defined by section of this Code. Sensitive uses means any residential use, public or private school, day care, playground, and retirement facility. Telecommunications tower means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas. Utility Pole means any pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission. Wireless telecommunications facility, facility or facilities mean any facility that transmits and/or receives electromagnetic waves. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. Exceptions: The term wireless telecommunications facility does not apply to the following: (a) Government owned and operated telecommunications facilities. (b) Emergency medical care provider-owned and operated telecommunications facilities. (c) Mobile services providing public information coverage of news events of a temporary nature. (d) Any wireless telecommunications facilities exempted from this Code by federal law or state law. Wireless telecommunications services means the provision of services using a wireless telecommunications facility or a wireless telecommunications collocation facility, and shall include, but not limited to, the following services: personal wireless services as defined in the federal Telecommunications Act of 1996 at 47 U.S.C. 332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or data radio telecommunications. Page 6 of / H-6

106 Applicability. A. This chapter applies to the siting, construction or modification of any and all wireless telecommunications facilities proposed to be located in the public right-of-way as follows: 1. All facilities for which applications were not approved prior to January 19, 2016 shall be subject to and comply with all provisions of this division. 2. All facilities for which applications were approved by the city prior to January 19, 2016 shall not be required to obtain a new or amended permit until such time as a provision of this code so requires. Any wireless telecommunication facility that was lawfully constructed prior to January 19, 2016 that does not comply with the standards, regulations and/or requirements of this division, shall be deemed a nonconforming use and shall also be subject to the provisions of section All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (section ),, cessation of use and abandonment (section ), removal and restoration (section ) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (section ); provided, however, that in the event a condition of approval conflicts with a provision of this division, the condition of approval shall control until the permit is amended or revoked. B. This chapter does not apply to the following: 1. Amateur radio facilities; 2. Over the Air Reception Devices ( OTARD ) antennas; 3. Facilities owned and operated by the city for its use; 4. Any entity legally entitled to an exemption pursuant to state or federal law or governing franchise agreement Wireless Telecommunications Facility Permit Requirements. A. Major Wireless Telecommunications Facilities Permit. All new wireless facilities or collocations or modifications to existing wireless facilities shall require a Major Wireless Telecommunications Facilities Permit subject to planning commission approval unless otherwise provided for in this chapter. B. Administrative Wireless Telecommunications Facilities Permit. Page 7 of / H-7

107 1. An Administrative Wireless Telecommunications Facilities Permit, subject to the director s approval, may be issued for new facilities or collocations or modifications to existing facilities that meet all the following criteria: a. The proposal is not located in any location identified in section b. The proposal would not significantly impair any view from any viewing area as those terms are interpreted and applied in Code section ; and c. The proposal complies with all applicable provisions in this chapter without need for an exception pursuant to section The director may, in the director s discretion, refer any application for an Administrative Wireless Telecommunications Facilities Permit to the planning commission for approval. 3. In the event that the director determines that any application submitted for an Administrative Wireless Telecommunications Facilities Permit does not meet the criteria this Code, the director shall convert the application to a Major Wireless Facilities Permit application and refer it to the planning commission. C. Master Deployment Plan Permit. 1. Any applicant that seeks approval for five (5) or more wireless telecommunications facilities (including new facilities and collocations to existing facilities) may elect to submit an application for a Master Deployment Plan Permit subject to planning commission approval. The proposed facilities in a Master Deployment Plan shall be reviewed together at the same time and subject to the same requirements and procedures applicable to a Major Wireless Telecommunications Facilities Permit. 2. A Master Deployment Plan Permit shall be deemed an approval for all wireless telecommunications facilities within the plan; provided, however, that an individual encroachment permit shall be required for each wireless telecommunications facility. 3. After the planning commission approves a Master Deployment Plan Permit, any deviations or alterations from the approved Master Deployment Plan for an individual wireless telecommunications facility shall require either a Major Wireless Telecommunications Facilities Permit or an Administrative Wireless Telecommunications Facilities Permit, as applicable. D. Other Permits Required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required prior permits or other approvals from other city departments, or state or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required prior permits or other approvals from other city departments, state or federal agencies. Page 8 of / H-8

108 E. Eligible Applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to state or federal law, or who have entered into a franchise agreement with the city permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a wireless telecommunications facility or a wireless telecommunications collocation facility in the public right-ofway. F. Speculative Equipment Prohibited. The city finds that the practice of preapproving wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public s best interest. The city shall not approve any equipment or other improvements in connection with a Wireless Telecommunications Facility Permit when the applicant does not actually and presently intend to install such equipment or construct such improvements Application for Wireless Telecommunications Facility Permit. A. Application. 1. In addition to the information required of an applicant for an encroachment permit or any other permit required by this code, each applicant requesting approval of the installation or modification of a wireless telecommunications facility in the public right-of-way shall fully and completely submit to the city a written application on a form prepared by the director. 2. No applicant seeking to install wireless antennas shall seek an encroachment permit for fiber or coaxial cable only. Applicants shall simultaneously request fiber installation or other cable installation when seeking to install antennas in the right-of-way. B. Application Contents The director shall develop an application form and make it available to applicants upon request. The supplemental application form for a new wireless telecommunications facility installation in the public right-of-way shall require the following information, in addition to all other information determined necessary by the director: 1. The name, address and telephone number of the applicant, owner and the operator of the proposed facility. 2. If the applicant is an agent, the applicant shall provide a duly executed letter of authorization from the owner of the facility. If the owner will not directly provide wireless telecommunications services, the applicant shall provide a duly executed letter of authorization from the person(s) or entity(ies) that will provide those services. 3. If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed Page 9 of / H-9

109 written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner s property. 4. A full written description of the proposed facility and its purpose. 5. Detailed engineering plans of the proposed facility and related report prepared by a professional engineer registered in the state documenting the following: a. Height, diameter and design of the facility, including 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 be the least visible equipment within the particular technology the carrier chooses to deploy. A layout plan, section and elevation of the tower structure shall be included. b. A photograph and model name and number of each piece of equipment included c. Power output and operating frequency for the proposed antenna. d. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. e. Sufficient evidence of the structural integrity of the pole or other supporting structure as required by the city. 6. A justification study which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option. 7. Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, pole diameter, antennas, accessory equipment, access or utility easements, landscaped areas, existing utilities, adjacent land uses, and showing compliance with section Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening. 9. A completed environmental assessment application. 10. If the applicant requests an exception to the requirements of this chapter (in accordance with section ), the applicant shall provide all information and studies necessary for the city to evaluate that request. Page 10 of / H-10

110 11. An accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility, including scaled photo simulations from at least 3 different angles. 12. 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 to determine whether the facility will be categorically excluded as that term is used by the FCC. 13. For a facility 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 facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts Effective Radio 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. 14. [Reserved] 15. Copies of any documents that the applicant is required to file pursuant to Federal Aviation Administration regulations for the facility. 16. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed wireless telecommunications facility will comply with this Code including section (A)(16)(B). 17. A traffic control plan when the proposed installation is on any street in a nonresidential zone. The city shall have the discretion to require a traffic control plan when the applicant seeks to use large equipment (e.g. crane). 18. A scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation with a discussion of how the chosen material at maturity will screen the site. 19. A written description identifying the geographic service area for the subject installation including geographic and propagation maps, that identifies the location of the proposed facility in relation to all existing and planned facilities maintained within the city by each of the applicant, operator, and owner, if different entities, as well as the estimated number of potentially affected uses in the geographic service area. Regardless of whether a Master Deployment Plan Page 11 of / H-11

111 Permit is sought, the applicant shall depict all locations anticipated for new construction and/or modifications to existing facilities, including collocation, within two years of submittal of the application. Longer range conceptual plans for a period of five years shall also be provided, if available. a. In the event the applicant seeks to install a wireless telecommunications facility to address service coverage concerns, full-color signal propagation maps with objective units of signal strength measurement that show the applicant s current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites; b. In the event the applicant seeks to address service capacity concerns, a written explanation identifying the existing facilities with service capacity issues together with competent evidence to demonstrate the inability of those facilities to meet capacity demands. 20. Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN. 21. An application fee, and a deposit for a consultant s review as set forth in paragraph E of this section in an amount set by resolution by the city council and in accordance with California Government Code section Proof that a temporary mock-up of the facility and sign has been installed at the proposed location for a period of at least thirty (30) calendar days. a. Applicant shall obtain an encroachment permit before installing the temporary mock-up, and must remove the temporary mock-up within five (5) calendar days of receiving a written notice to remove from the director. b. When seeking the encroachment permit, the applicant shall provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation. The city shall mail a notice regarding installation of the mock-up at least five (5) business days prior to the installation. c. The mock-up shall demonstrate the height and mass of the facility, including all interconnecting cables. The applicant shall not be entitled to install the facility it intends to install permanently. The mock-up may consist of story poles or the like. d. The mock-up shall include a sign that displays photo simulations depicting before and after images, including any accessory equipment cabinet, and the telephone number of the Public Works Department. Page 12 of / H-12

112 e. The applicant shall be required to follow any other city practices or processes relevant to the installation of a mock-up as may be provided in a publicly accessible form or document. f. After installation of the mock-up, the applicant shall certify that the mock-up accurately represents the height and width of the proposed installation and has been installed consistent with this Code. 23. Any other information and/or studies determined necessary by the director may be required. C. Application Contents Modification of Existing Facility. The content of the application form for a modification to an existing facility shall be determined by the director, and shall include but not be limited to the requirements listed in section (B) unless prohibited by state or federal law. D. Effect of State or Federal Law Change. In the event a subsequent state or federal law prohibits the collection of any information required by section (B), the director is authorized to omit, modify or add to that request from the city s application form with the written approval of the city attorney, which approval shall be a public record. E. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: 1. Compliance with applicable radio frequency emission standards; 2. Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so; 3. The accuracy and completeness of submissions; 4. Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis; 5. The applicability of analysis techniques and methodologies; 6. The validity of conclusions reached or claims made by applicant; 7. The viability of alternative sites and alternative designs; and 8. Any other specific technical issues identified by the consultant or designated by the city. Page 13 of / H-13

113 The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the city for the consultants cost Review Procedure A. Pre-submittal Conference. Prior to application submittal, the city strongly encourages all applicants to schedule and attend a pre-submittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and application materials. The pre-submittal conference is intended to identify potential concerns and streamline the formal application review process after submittal. Public Works Department staff will endeavor to provide applicants with an appointment within approximately five (5) business days after receipt of a written request. B. Application Submittal Appointment. All applications must be submitted to the city at a pre-scheduled appointment. Applicants may submit one (1) application per appointment but may schedule successive appointments for multiple applications whenever feasible as determined by the city. City staff will endeavor to provide applicants with an appointment within five (5) business days after receipt of a written request. C. Notice; Decisions. The provisions in this section describe the procedures for approval and any required notice and public hearings for an application. 1. Planning Commission Hearings. Any permit application under this chapter subject to planning commission approval shall require notice and a public hearing. Notice of such hearing shall be provided in accordance with Code section The planning commission may approve, or conditionally approve, an application only after it makes the findings required in section Director s Decision Notice. The director may approve, or conditionally approve, an application only after it makes the findings required in section Within five days after the director approves or conditionally approves an application under this chapter, the director shall provide notice in accordance with Code section 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 (20) days prior to the expiration. 4. Written Decision Required. All final decisions made pursuant to this chapter shall be in writing and based on substantial evidence in the written administrative record. The written decision shall include the reasons for the decision. Page 14 of / H-14

114 D. Appeals. Any aggrieved person or entity may appeal a decision by the director or the planning commission as provided in accordance with the provisions in Code chapter The appellate authority may hear the appeal de novo Requirements for Facilities within the Public Right-of-Way A. Design and Development Standards. All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following: 1. General Guidelines. a. The applicant shall employ screening, undergrounding and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually screened as possible, to prevent the facility from dominating the surrounding area and to minimize significant view impacts from surrounding properties all in a manner that achieves compatibility with the community and in compliance with section of this Code. b. Screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility s visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality. c. Facilities shall be located such that views from a residential structure are not significantly impaired. Facilities shall also be located in a manner that protects public views over city view corridors, as defined in the city s general plan, so that no significant view impairment results in accordance with this Code including section This provision shall be applied consistent with local, state and federal law. 2. [Reserved] 3. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. 4. Blending Methods. All facilities shall have subdued colors and non-reflective materials that blend with the materials and colors of the surrounding area and structures. 5. Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other Page 15 of / H-15

115 operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible. 6. Poles. a. Facilities shall be located consistent with section unless an exception pursuant to section is granted. b. Only pole-mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole. (For exceptions see subparagraph (h) below and sections and ) c. Utility Poles. The maximum height of any antenna shall not exceed forty-eight (48) inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than twenty-four (24) feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as may be revised or superseded. d. Light Poles. The maximum height of any antenna shall not exceed four (4) feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be no less than sixteen and a half (16 1/2) feet above any drivable road surface. e. Replacement Poles. If an applicant proposes to replace a pole in order to accommodate a proposed facility, the pole shall be designed to resemble the appearance and dimensions of existing poles near the proposed location, including size, height, color, materials and style to the maximum extent feasible. f. Pole mounted equipment, exclusive of antennas, shall not exceed six (6) cubic feet in dimension. g. [Reserved] h. An exception shall be required to place a new pole in the public right-of-way. If an exception is granted for placement of new poles in the right-of-way: i. Such new poles shall be designed to resemble existing poles in the rightof-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced. ii. Such new poles that are not replacement poles shall be located at least ninety (90) feet from any existing pole to the extent feasible. Page 16 of / H-16

116 iii. Such new poles shall not adversely impact public view corridors, as defined in the general plan, and shall be located to the extent feasible in an area where there is existing natural or other feature that obscures the view of the pole. The applicant shall further employ concealment techniques to blend the pole with said features including but not limited to the addition of vegetation if appropriate. iv. A new pole justification analysis shall be submitted to demonstrate why existing infrastructure cannot be utilized and demonstrating the new pole is the least intrusive means possible including a demonstration that the new pole is designed to be the minimum functional height and width required to support the proposed facility. i. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible. For all wooden poles wherein interior installation is infeasible, conduit and cables attached to the exterior of poles shall be mounted flush thereto and painted to match the pole. 7. Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible. 8. Wind Loads. Each facility shall be properly engineered to withstand wind loads as required by this Code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility. 9. Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, incommode the public s use of the right-of-way, or safety hazards to pedestrians and motorists and in compliance with section so as not to obstruct the intersection visibility triangle. 10. Public Facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility. 11. Screening. All ground-mounted facility, pole-mounted equipment, or walls, fences, landscaping or other screening methods shall be installed at least eighteen (18) inches from the curb and gutter flow line. 12. Accessory Equipment. Not including the electric meter, all accessory equipment shall be located underground, except as provided below: a. Unless city staff determines that there is no room in the public right-of-way for undergrounding, or that undergrounding is not feasible, an exception shall Page 17 of / H-17

117 be required in order to place accessory equipment above-ground and concealed with natural or manmade features to the maximum extent possible. b. When above-ground is the only feasible location for a particular type of accessory equipment and will be ground-mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five (5) feet and a total footprint of fifteen (15) square feet, and shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Required electrical meter cabinets shall be screened and/or camouflaged. Also, while pole-mounted equipment is generally the least favored installation, should pol-mounted equipment be sought, it shall be installed as required in this Chapter. c. In locations where homes are only along one side of a street, above-ground accessory equipment shall not be installed directly in front of a residence. Such above-ground accessory equipment shall be installed along the side of the street with no homes. Unless said location is located within the coastal setback or the landslide moratorium area, then such locations shall be referred to the city s geotechnical staff for review and recommendations. 13. Landscaping. Where appropriate, each facility shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs. Additional landscaping shall be planted, irrigated and maintained by applicant where such landscaping is deemed necessary by the city to provide screening or to conceal the facility. 14. Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the city. 15. Lighting. a. No facility may be illuminated unless specifically required by the Federal Aviation Administration or other government agency. Beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency. b. Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers and monopoles. c. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding neighborhoods. d. Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion-sensitive light controllers and lights, and must install such lights so as to avoid illumination impacts to adjacent properties to the maximum extent feasible. The city may, in its discretion, exempt an Page 18 of / H-18

118 applicant from the foregoing requirement when the applicant demonstrates a substantial public safety need. e. The applicant shall submit a lighting study which shall be prepared by a qualified lighting professional to evaluate potential impacts to adjacent properties. Should no lighting be proposed, no lighting study shall be required. 16. Noise. a. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 PM and 7:00 AM. b. At no time shall equipment noise from any facility exceed an exterior noise level of fifty-five (55) dba three (3) feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within five hundred (500) feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed forty-five (45) dba three (3) from the sources of the noise. 17. Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The director may require the provision of warning signs, fencing, anticlimbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device. 18. Modification. Consistent with current state and federal laws and if permissible under the same, at the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities. 19. The installation and construction approved by a wireless telecommunications facility permit shall begin within one (1) year after its approval or it will expire without further action by the city. B. Conditions of Approval. In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any modification of these conditions or additional conditions of approval deemed necessary by the director: Page 19 of / H-19

119 1. The permittee shall submit an as built drawing within ninety (90) days after installation of the facility. [As-builts shall be in an electronic format acceptable to the city which can be linked to the city s GIS.] 2. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the city. The permittee shall notify the city of any changes to the information submitted within thirty (30) days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following: a. Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility. b. The legal status of the owner of the wireless telecommunications facility. 3. The permittee shall notify the city in writing at least ninety (90) days prior to any transfer or assignment of the permit. The written notice required in this section must include: (1) the transferee s legal name; (2) the transferee s full contact information, including a primary contact person, mailing address, telephone number and address; and (3) a statement signed by the transferee that the transferee shall accept all permit terms and conditions. The director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all its conditions of approval, if any. Such materials or documentation may include, but shall not be limited to: federal, state and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as-built drawings; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission. Noncompliance with the permit and all its conditions of approval, if any, or failure to submit the materials required by the director shall be a cause for the city to revoke the applicable permits pursuant to and following the procedure set on in section At all times, all required notices and/or signs shall be posted on the site as required by the Federal Communications Commission, California Public Utilities Commission, any applicable licenses or laws, and as approved by the city. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans. 5. Permittee shall pay for and provide a performance bond or other form of security approved by the city attorney s office, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee s obligations under these conditions of approval and this code. The security instrument coverage shall include, but not be limited to, removal of the facility. (The amount of the security instrument shall be calculated by the applicant in its submittal documents in an amount rationally related to the Page 20 of / H-20

120 obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said security instrument. 6. If a nearby property owner registers a noise complaint, the city shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have ten (10) business days to file a written response regarding the complaint which shall include any applicable remedial measures. If the city determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose conditions on the project to achieve said objective. 7. A condition setting forth the permit expiration date in accordance with section shall be included in the conditions of approval. 8. The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the director for the purpose of: (a) protecting the public health, safety, and welfare; (b) preventing interference with pedestrian and vehicular traffic; and/or (c) preventing damage to the public right-of-way or any adjacent property. The city may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the underlying permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the city by the permittee. 9. The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by section (B)(5). 10. 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 wireless telecommunications facility 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 an encroachment permit issued for any facility within the public rightof-way, 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 Page 21 of / H-21

121 other structure, improvement or property within the public right-of-way to be affected by applicant s facilities. 11. The permittee shall assume full liability for damage or injury caused to any property or person by the facility. 12. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the city engineer. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the city engineer shall cause such repair to be completed at permittee s sole cost and expense. 13. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way. 14. Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best s Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the city, and any insurance or self-insurance maintained by the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers shall be excess of permittee s insurance and shall not contribute with it. The policies of insurance required by this permit shall include provisions for waiver of subrogation. In accepting the benefits of this permit, permittee hereby waives all rights of subrogation against the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. The insurance must afford coverage for Page 22 of / H-22

122 the permittee s and the wireless provider s use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the city s risk manager. Before issuance of any building permit for the facility, the permittee shall furnish the city risk manager certificates of insurance and endorsements, in the form satisfactory to the city attorney or the risk manager, evidencing the coverage required by the city. 15. Permittee shall defend, indemnify, protect and hold harmless city, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the city, and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers to attack, set aside, void or annul, an approval of the city, planning commission or city council concerning this permit and the project. Such indemnification shall include damages of any type, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The city shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit city from participating in a defense of any claim, action or proceeding. The city shall have the option of coordinating the defense, including, but not limited to, choosing counsel after consulting with permittee and at permittee s expense. 16. Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney s fees, interest and expert witness fees), or damages claimed by third parties against the city for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the wireless telecommunications facility, or to any work done by or use of the public right-ofway by the permittee, owner or operator of the wireless telecommunications facility, or their agents, excepting only liability arising out of the sole negligence or willful misconduct of the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. 17. Should the utility company servicing the facility with electrical service that does not require the use of an above ground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within ninety (90) days of such service being offered and reasonably restore the area to its prior condition. An extension may be granted if circumstances arise outside of the control of the permittee. Page 23 of / H-23

123 18. Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to city, if and when made necessary by (i) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or above ground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency, (ii) any abandonment of any street, sidewalk or other public facility, (iii) any change of grade, alignment or width of any street, sidewalk or other public facility, or (iv) a determination by the director that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public s use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within ninety (90) days of notification by city unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a modified permit pursuant to the Code including applicable notice and hearing procedures. The permittee shall be entitled, on permittee s election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Code allow. In the event the facility is not modified, removed, or relocated within said period of time, city may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances including those of immediate or imminent threat to the public s health and safety, the city may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter. 19. Permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the wireless telecommunications facility permit within thirty (30) days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the city within said thirty (30) day period. 20. Prior to the issuance of any encroachment, permittee may be required to enter into a right-of-way agreement with the city in accordance with Section Permittee shall include the applicant and all successors in interest to this permit Findings. No permit shall be granted for a wireless telecommunications facility unless all of the following findings are made by the director: A. All notices required for the proposed installation have been given. B. The proposed facility has been designed and located in compliance with all applicable provisions of this chapter. Page 24 of / H-24

124 C. If applicable, the applicant has demonstrated its inability to locate on existing infrastructure. D. The applicant has provided sufficient evidence supporting the applicant s claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise agreement with the city permitting them to use the public right-of-way. E. The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible and 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 available [Section Reserved] Nonexclusive grant. No permit or approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the city for any purpose whatsoever. Further, no approval shall be construed as any warranty of title Emergency Deployment. A COW shall be permitted for the duration of an emergency declared by the city or at the discretion of the director Operation and Maintenance Standards. All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards. A. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within forty-eight (48) hours: 1. After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or 2. After permittee, owner, operator or any designated maintenance agent receives notification from the city. B. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ( contact information ). Contact information shall be updated within seven (7) days of any change. Page 25 of / H-25

125 C. All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of: 1. General dirt and grease; 2. Chipped, faded, peeling, and cracked paint; 3. Rust and corrosion; 4. Cracks, dents, and discoloration; 5. Missing, discolored or damaged artificial foliage or other camouflage; 6. Graffiti, bills, stickers, advertisements, litter and debris; 7. Broken and misshapen structural parts; and 8. Any damage from any cause. D. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the director. E. The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation. F. Each facility shall be operated and maintained to comply at all conditions of approval. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the same and the standards set forth in this chapter [Reserved] No Dangerous Condition or Obstructions Allowed No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. Page 26 of / H-26

126 Permit Expiration. A. Unless Government Code section 65964, as may be amended, authorizes the city to issue a permit with a shorter term, a permit for any wireless telecommunications facility shall be valid for a period of ten (10) years, unless pursuant to another provision of this Code it lapses sooner or is revoked. At the end of ten (10) years from the date of issuance, such permit shall automatically expire. B. A permittee may apply for a new permit within one hundred and eighty (180) days prior to expiration. Said application and proposal shall comply with the city s current code requirements for wireless telecommunications facilities Cessation of Use or Abandonment A. A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for ninety (90) or more consecutive days unless the permittee has obtained prior written approval from the director which shall not be unreasonably denied. If there are two (2) or more users of a single facility, then this provision shall not become effective until all users cease using the facility. B. The operator of a facility shall notify the city in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten (10) days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the director of any discontinuation of operations of thirty (30) days or more. C. Failure to inform the director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for: 1. Litigation; 2. Revocation or modification of the permit; 3. Acting on any bond or other assurance required by this article or conditions of approval of the permit; 4. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner s expense; and/or 5. Any other remedies permitted under this Code Removal and Restoration Permit Expiration, Revocation or Abandonment A. Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to Page 27 of / H-27

127 its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the city. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the city. The facility shall be removed from the property, at no cost or expense to the city. B. Failure of the permittee, owner or operator to promptly remove its facility and restore the property within ninety (90) days after expiration, earlier termination or revocation of the permit, or abandonment of the facility, shall be a violation of this Code. Upon a showing of good cause, an extension may be granted by the director where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for: 1. Prosecution; 2. Acting on any security instrument required by this chapter or conditions of approval of permit; 3. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner s expense; and/or 4. Any other remedies permitted under this Code. C. Summary Removal. In the event the director or city engineer determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-ofway, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, exigent circumstances ), the director or city engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five (5) business days of removal and all property removed shall be preserved for the owner s pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick-up the property within sixty (60) days, the facility shall be treated as abandoned property. D. Removal of Facilities by city. In the event the city removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the city for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the city may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this Code. Unless otherwise provided herein, the city has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the city destroys any such facility not timely Page 28 of / H-28

128 removed by the permittee, owner or operator after notice, or removed by the city due to exigent circumstances Exceptions. A. The city council recognizes that federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services and the applicant proposes the least intrusive means to provide such services. The city council finds that, due to wide variation among wireless facilities, technical service objectives and changed circumstances over time, a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. The city council further finds that circumstances in which an effective prohibition may occur are extremely difficult to discern, and that specified findings to guide the analysis promotes clarity and the city s legitimate interest in well-planned wireless facilities deployment. Therefore, in the event that any applicant asserts that strict compliance with any provision in this chapter, as applied to a specific proposed personal wireless services facility, would effectively prohibit the provision of personal wireless services, the planning commission may grant a limited, one-time exemption from strict compliance subject to the provisions in this section B. Required Findings. The planning commission shall not grant any exemption unless the applicant demonstrates with clear and convincing evidence all the following: 1. The proposed wireless facility qualifies as a personal wireless services facility as defined in United States Code, Title 47, section 332(c)(7)(C)(ii); 2. The applicant has provided the city with a clearly defined technical service objective and a clearly defined potential site search area; 3. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why any alternative location(s) or design(s) suggested by the city or otherwise identified in the administrative record, including but not limited to potential alternatives identified at any public meeting or hearing, are not technically feasible or potentially available; and 4. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why the proposed location and design deviates is the least noncompliant location and design necessary to reasonably achieve the applicant s reasonable technical service objectives. C. Scope. The planning commission shall limit its exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The planning commission may adopt conditions of approval as reasonably necessary to promote the purposes in this chapter and protect the public health, safety and welfare. Page 29 of / H-29

129 D. Independent Consultant. The city shall have the right to hire, at the applicant s expense, an independent consultant to evaluate issues raised by the exception and to submit recommendations and evidence in response to the application Location Restrictions. Locations Requiring an Exception. Wireless telecommunications facilities are strongly disfavored in certain areas. Therefore the following locations are permitted when an exception has been granted pursuant to section : A. Public right-of-way of local streets as identified in the general plan if within the residential zones; B. Public right-of-way if mounted to a new pole that is not replacing an existing pole in an otherwise permitted location Effect on Other Ordinances. Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this Code. In the event of a conflict between any provision of this division and other sections of this Code, this chapter shall control State or Federal Law. A. In the event it is determined by the city attorney that state or federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, such requirement shall be deemed severable and all remaining regulations shall remain in full force and effect. Such a determination by the city attorney shall be in writing with citations to legal authority and shall be a public record. For those facilities, in lieu of a minor conditional use permit or a conditional use permit, a ministerial permit shall be required prior to installation or modification of a wireless telecommunications facility, and all provisions of this division shall be applicable to any such facility with the exception that the required permit shall be reviewed and administered as a ministerial permit by the director rather than as a discretionary permit. Any conditions of approval set forth in this provision or deemed necessary by the director shall be imposed and administered as reasonable time, place and manner rules. B. If subsequent to the issuance of the city attorney s written determination pursuant to (A) above, the city attorney determines that the law has changed and that discretionary permitting is permissible, the city attorney shall issue such determination in writing with citations to legal authority and all discretionary permitting requirements shall be reinstated. The city attorney s written determination shall be a public record. C. All installations permitted pursuant to this chapter shall comply with all federal and state laws including but not limited to the American with Disabilities Act. Page 30 of / H-30

130 Nonconforming Wireless Telecommunications Facilities in the Right-of-Way A. Nonconforming wireless telecommunications facilities are those facilities that do not conform to this chapter. B. Nonconforming wireless telecommunications facilities shall, within ten (10) years from the date such facility becomes nonconforming, be brought into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this Code at such time, to the extent the city can require such compliance under federal and state law. C. An aggrieved person may file an appeal to the city council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten (10) year amortization period is not reasonable as applied to a particular property, the city council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property. SECTION 5. Section of Chapter 96, Title 17 is amended and replaced in its entirety to read as follows: "Commercial antenna" means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, "commercial purposes" shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). "Commercial antennas" shall not include antennas owned or operated by governmental agencies. SECTION 6. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 7. Effective Date. This ordinance shall be in effective on the thirtieth (30th) day after the day of its adoption. SECTION 8. Certification. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be posted in the manner required by law. Page 31 of / H-31

131 PASSED, APPROVED AND ADOPTED this day of 2016, by the following vote to wit: Mayor ATTEST: City Clerk APPROVED AS TO FORM: David J. Aleshire City Attorney Page 32 of / H-32

132 City of RANCHO PALOS VERDES Received: Initials Date Wireless Telecommunications Facility Permit Application INTRODUCTION a. All applicants for a wireless communication facility permit ( WTFP ) or a modified WTFP must complete this application and submit all documentation requested thereunder. WTFPs apply to all facilities for the provision of wireless services including antennas, poles, towers, cables, and wires. b. For all WTFP applications, you must submit three (3) copies of this application with exhibits attached, a WTFP fee, and deposit(s) for an independent consultant(s) to review the application. c. Submit all application materials in person to the following location: i Hawthorne Blvd., Rancho Palos Verdes, CA ii. Please call (310) for office hours. INSTRUCTIONS a. Complete the following application in its entirety. An incomplete application will result in any of the following: (1) denial of the permit; (2) delay in granting the permit; (3) a request for supplemental information. All written responses to the questions below must be typed in 12 point font. Several questions require you to attach as exhibits supplemental documentation and commentary to support your answers below. All your exhibits must be marked as directed in the application. All supporting documentation must be clear and legible. All exhibits must be stapled or bound to the application. PUBLIC NOTICE REQUIREMENTS a. The applicant is required to provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation. The notice will be mailed on or about 5 business days prior to any installation of the mock-up and will include photo simulations depicting before and after images. b. If applicable, prepare public hearing information pursuant to the public noticing requirements of the Rancho Palos Verdes Municipal Code ( RPVMC ) Section c. Provide proof that all applicable public notices articulated in the RPVMC and the noticing policies of the city of Rancho Palos Verdes ( city ) have been met. Provide the city twenty (20) days advance notice of an upcoming shot clock expiration date to provide the city with a final opportunity to approve or deny the application before it is deemed approved / Page 1 of 11 I-1

133 I. CONTACT INFORMATION a. Property address: b. Assessor s Parcel No(s): c. Applicable homeowner s association: d. Contact information for the following: i. Wireless provider or operator: ii. iii. iv. (1) Name: (2) Street Address: (3) city, State & Zip: (4) Phone No.: (5) Fax No.: (6) Applicant: (1) Name: (2) Street Address: (3) City, State & Zip: (4) Phone No.: (5) Fax No.: (6) (7) Your property interest: Lease License Ownership Other: Property owner: (1) Name: (2) Street Address: (3) city, State & Zip: (4) Phone No.: (5) Fax No.: (6) Person most knowledgeable about the proposed project: Same as Applicant listed above. (1) Name: (2) Street Address: (3) city, State & Zip: / Page 2 of 11 I-2

134 (4) Phone No.: (5) Fax No.: (6) II. Application Type Check the box identifying the permitting the application seeks Major Wireless Telecommunications Facilities Permit Administrative Wireless Telecommunications Facilities Permit Master Deployment Plan Permit For parts (1) (2), provide a description supporting your selections below. Attach all rules, regulations, agreements, court documents, or other materials on which you base your response. Attach description and supporting documentation marked as Exhibit A. 1. Check the box(es) below that identify the statute(s) you believe govern(s) the application request: a. Section 6409(a) of the Middle Class Tax and Job Creation Act of 2012 for collocation or modification to an existing commission-authorized Wireless Telecommunications service b. Section 332(c)(7) of the Telecommunications Act for the provision of personal wireless telecommunications facilities c. California Government Code Section (AB-57) 2. Check the box below pertaining to the shot clock you believe applies to your application: a. 150 day shot clock for new facilities b. 90 day shot clock for modifications resulting in a substantial change c. 60 days shot clock for modifications that do not result in a substantial change Characteristics of the Property III. 1. Specify the following characteristics about the existing property: a. Zoning designation: b. General Plan designation: c. Parcel Size: d. Parcel Width: e. Parcel Depth: f. Average Slope: g. Describe the current use of the parcel: h. Legal description of the parcel: 2. Attach pictures of the site and surrounding area as it currently exists. Attach and mark as Exhibit B / Page 3 of 11 I-3

135 IV. Description of Project Coverage and Purpose 1. Provide a narrative description of the project. Your response shall include, but not be limited to, a description of the proposed facility or modification, the anticipated construction activities involved, the maintenance requirements and schedule for the new or modified facility, and the number of antennas to be installed. Provide any supporting documentation regarding the purpose of the project. Attach and mark responses and documentation as Exhibit C1. 2. Is the purpose of the project, in whole or in part, designed to close what you believe to be a significant gap in coverage? a. Yes b. No Attach supporting documentation and commentary substantiating your response. If you selected Yes above, provide a justification study that provides the following: a. A detailed explanation of the coverage gap that the proposed use would serve; b. The rationale for selecting the proposed use; c. An explanation that identifies whether the proposed project is the least intrusive means of closing the significant gap and on what basis the applicant believes the project to be the least intrusive means. Attach and mark as Exhibit C2. 3. Provide three (3) copies of each of the following geographic and propagation maps illustrating the following (Attach and mark as Exhibit C3.): a. Geographic boundaries of a significant gap in coverage, if applicable. b. The proposed site that identifies the location of existing wireless telecommunications facilities owned and/or operated by the applicant. c. Location of the proposed facility in relation to all existing and planned facilities maintained within the city by the applicant, operator, and owner, if different entities. d. Existing network or radio frequency coverage e. Proposed radio frequency coverage 4. Provide a description identifying the geographic service area for the subject installation. Attach and mark as Exhibit C4. 5. If the applicant is seeking to install a facility that exceeds the maximum height permitted in the city s Municipal Code, attach and mark as Exhibit C5 an analysis comparing the operation of the facility at its proposed height with its operation at the maximum height permitted. 6. Check the box below that most accurately identifies the primary purpose of the project: a. Increase network capacity without adding new radio frequency coverage b. Provide significant new radio frequency coverage in areas without radio frequency coverage c. Increase existing radio frequency coverage in area with coverage d. Other: / Page 4 of 11 I-4

136 V. Project Location and Authorizations Facilities will be located: a. On private property b. In the public right of way (PROW) 1. If the facility will be sited in the PROW, state or provide the following: a. Your authority to locate the facility in the PROW (state law, federal law, or franchise agreement); Attach and mark as Exhibit D1a. b. If applicable, include a copy of the certificate of public convenience and necessity (CPCN). Attach and mark as Exhibit D1b; c. Whether a new pole that is not replacing an existing pole in an otherwise permitted location is proposed to be sited in the PROW. If so, attach and mark as Exhibit D1c a new pole justification analysis to demonstrate why existing infrastructure cannot be utilized and how the new pole is the least intrusive means possible; d. Whether the facility is proposed to be sited in the PROW of non-local roadways (as defined by the city). 2. If the facility will be co-located on a structure owned by someone other than the owner of the proposed installation provide: a. Written authorization by any and all property owners authorizing the placement of the facility on or in the property owner s property. Attach and mark as Exhibit D2. 3. If applicable, provide the following letter(s) of authorization to collocate, modify, or provide services: a. If the applicant is an agent, attach and mark as Exhibit D3a a letter of authorization from the owner of the facility. b. If the owner will not directly provide wireless telecommunications services, attach and mark as Exhibit D3b a letter of authorization from the person or entity that will provide those services. VI. Radio Frequency ( RF ) Emissions and Monitoring Requirements 1. Provide proof or certification of completion of the 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. Attach and mark as Exhibit E. The Guide can be found at: / Page 5 of 11 I-5

137 2. Pursuant to the completed checklist referenced above, will the facility be categorically excluded under the FCC regulations for RF emissions? a. Yes b. No If you selected No above, provide a technically detailed report certified by a qualified radio frequency engineer indicating the following: i. The amount of RF emissions expected from the proposed facility; ii. The associated accessory equipment required; iii. The cumulative impacts of the other existing facilities at the site to the extent permitted by federal law, including co-located facilities; iv. That the proposed facility individually or combined with the cumulative emissions of on-site facilities will not exceed applicable standards set by the FCC. VII. Engineering Plans for the Facility and Equipment Submit one (1) electronic copy and three (3) hard copies of stamped detailed engineering plans of the proposed facility and related reports prepared and signed by a professional engineer registered in the state of California documenting the following: 1. Height, diameter, design of the facility, including 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. Attach and mark as Exhibit F1. 2. A cross-section of the tower structure. Attach and mark as Exhibit F2. 3. A photograph and model name and number of each piece of equipment included. Attach and mark as Exhibit F3. 4. Power output and operating frequency for the proposed antenna. Attach and mark as Exhibit F4. 5. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. Attach and mark as Exhibit F5. 6. Structural calculation demonstrating the structural integrity of the proposed facility. Attach and mark as Exhibit F6. 7. Wind velocity test. An evaluation of high wind load capacity shall include the impact of a modification to an existing facility. Attach and mark as Exhibit F7. 8. Seismic analysis. Attach and mark as Exhibit F8. VIII. Site Plans 1. Attach the following documentation or information: / Page 6 of 11 I-6

138 a. One (1) electronic copy and three (3) hard copies of the site plans to scale in compliance with city requirements including, but not limited to, the requirements contained in the RPVMC. Attach and mark as Exhibit H1a. i. The site plans must at minimum include: (1) The location and dimensions of the existing facility and maximum height above ground of the facility; (2) The benchmarks and data used for elevations; (3) The location of existing accessways and the location and design for all proposed accessways; (4) The exact proposed location of the pole, antennas, accessory equipment, and landscaped areas; (5) The location of existing utilities and adjacent land uses; (6) The design of the facility, including the specific type of support structure, type, location, size, height, and configuration of applicant s existing and proposed facilities; (7) If applicable, the method by which an antenna will be attached to the mounting structure. b. Three (3) copies of the Master Plan of all existing and proposed facilities. The Master Plan shall reflect all locations anticipated for new construction and/or modifications to existing facilities, including collocation, that are anticipated to be installed within the next two years from submittal of this application. Attach and mark as Exhibit H1b. c. If applicable, three (3) copies of the scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation. Provide a description of how the chosen material at maturity will screen the site. Attach and mark as Exhibit H1c. d. Three (3) sets of scaled and dimensioned photo simulations of the before and after images of the project and project site from at least three (3) different angles and three (3) sets of an accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility. Attach and mark as Exhibit H1d. 2. Attach a narrative description and supporting documentation marked as Exhibit H2 that: a. Identifies whether the proposed project is consistent with the General Plan and any specific plans; b. Identifies whether the proposed use is conditionally permitted within the zoned area; c. Identifies applicable zoning and development codes and requirements and demonstrates whether the proposed project complies with all applicable provisions of the city s zoning and development code; / Page 7 of 11 I-7

139 d. Identifies applicable building codes and other generally applicable laws or prior conditions for approval that reasonably relate to public health and safety and demonstrates compliance therewith. IX. Alternative Sites 1. List a minimum of three (3) alternative sites for the proposed project, including at least one (1) collocated site. a. Alternative 1: i. Address of property: ii. iii. Property owner(s) name(s): (1) Address: (2) Telephone number: Zoning designation: iv. General Plan designation: v. Explanation of why Alternative 1 is inferior to proposed project. Attach and mark as Exhibit I1. b. Alternative 2: i. Address of property: ii. iii. Property owner(s) name(s): (1) Address: (2) Telephone number: Zoning designation: iv. General Plan designation: v. Explanation of why Alternative 2 is inferior to proposed project. Attach and mark as Exhibit I2. c. Alternative 3: i. Address of property: ii. iii. Property owner(s) name(s): (1) Address: (2) Telephone number: Zoning designation: iv. General Plan designation: v. Explanation of why Alternative 3 is inferior to proposed project. Attach and mark as Exhibit I / Page 8 of 11 I-8

140 X. Anticipated Impacts and Other Confounding Factors 1. Provide descriptions, commentary, and supporting documentation relating to the following: a. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed facility will comply with the RPVMC. Attach and mark as Exhibit J1a. b. Attach and mark the application as Exhibit J1b. c. Historic preservation review. Attach and mark as Exhibit J1c. d. A traffic control plan if the proposed installation is to be sited on any street in a non-residential zone. Attach and mark as Exhibit J1d. e. A completed environmental assessment application. The application can be found at XI. Other Requirements 1. Attach and mark as Exhibit K1 all other documentation certifying that all applicable licenses or other approvals required by the FCC have been obtained to provide the services proposed in connection with the application. 2. Attach and mark as Exhibit K2 any copies of all documents the applicant is required to file pursuant to the Federal Aviation Administration regulations for the facility. 3. Attach and mark as Exhibit K3 all other documentation required by the RPVMC. XII. Exceptions to the Application Requirements 1. Do you believe you are entitled to an exception to the requirement(s) of this application, including, but not limited to, exceptions from findings that would otherwise justify denial? a. Yes b. No 2. If you selected Yes above, attach and mark as Exhibit L all information and studies necessary for the city to evaluate a request for an exception to the requirements of this application. The narrative must demonstrate with clear and convincing evidence that denial of the facility would violate state and/or federal law, violate the provisions of this division, as applied to the applicant, or deprive the applicant of its rights under state and/or federal law. XIII. Supplemental Materials for Projects Subject to 6409 You must complete this section if you selected the box in Section II titled Application Type that indicates your project is subject to For parts (1) (6), provide a / Page 9 of 11 I-9

141 narrative description and any supporting documentation for the selections you make below. Attach and mark as Exhibit M. 1. Is the application for an eligible facilities request? a. Yes b. No 2. Will the proposed project cause a substantial change in the physical dimension of the structure? a. Yes b. No 3. Does the structure at issue involve an existing wireless tower or base station? a. Yes b. No 4. Check the box(es) below that are applicable to your project: a. Allocation of new transmission equipment b. Removal of transmission equipment c. Replacement of transmission equipment 5. If your project does not involve excavation, tower installation, or tower modification in the PROW, answer the following questions: a. Does the project propose a height increase of less than 10% or no more than one additional antenna not more than 20 feet in height (whichever is greater)? b. Does the project propose a width increase of less than 20 feet? c. Will the project require excavation near the ground-mounted equipment? d. Will the project preserve all existing concealment elements of the current tower or base station? e. Will the proposed collocation preserve all prior conditions of approval that do not conflict with FCC regulations for a substantial change? f. Does the project propose adding four or fewer additional equipment cabinets? 6. If your project involves excavation, tower or base station installation, or tower or base station modification in the PROW, answer the following questions: a. Does the project propose a height increase of less than 10% or 10 feet (whichever is greater)? Yes No b. Does the project propose a width increase of less than 6 feet? Yes No / Page 10 of 11 I-10

142 c. Does the project propose excavation entirely within the anticipated lease area of private property? Yes No d. Will the project preserve all existing concealment elements of the current tower or base station? Yes No e. Will the proposed collocation preserve all prior conditions of approval that do not conflict with FCC regulations for a substantial change? Yes No f. Does the project propose adding four or fewer additional equipment cabinets? Yes No Date: Signature Printed Title/Company / Page 11 of 11 I-11

143 MACKENZIE & ALBRITTON LLP 220 SANSOME STREET, 14 TH FLOOR SAN FRANCISCO, CALIFORNIA TELEPHONE 415 / FACSIMILE 415 / February 8, 2016 VIA Mayor Ken Dyda Mayor Pro Tem Brian Campbell Councilmembers Susan Brooks, Jerry Duhovic and Anthony M. Misetich City Council Rancho Palos Verdes Hawthorne Boulevard Rancho Palos Verdes, California Re: Ordinance Regulating Wireless Telecommunications Facilities in the Public Right-of-Way City Council Agenda, February 16, 2016 Dear Mayor Dyda, Mayor Pro Tem Campbell and Councilmembers: We write to you again on behalf of our client Verizon Wireless regarding the revisions to the draft ordinance regulating wireless telecommunications facilities in the public right-of-way (the Draft Ordinance ). In our prior correspondence dated January 5, 2016, we described numerous problems in the original draft presented to the City Council on January 19, 2016, including provisions conflicting with state and federal law. Unlike the situation in virtually every jurisdiction we have worked with, none of our suggested revisions were incorporated into the revised Draft Ordinance released last week except the deletion of collector roadways from the list of restricted locations under Section , and the revised Draft Ordinance actually exacerbates conflicts with state and federal law. The Draft Ordinance has been converted to an urgency ordinance, but we encourage the City not to rush in adopting flawed regulations and instead to take the time to resolve issues in the Draft Ordinance. We strongly encourage the City to incorporate our previous suggested revisions as well as additional comments on revisions to the Draft Ordinance. To that end, we attach our prior correspondence and provide the following supplemental comments. J-1

144 Rancho Palos Verdes City Council February 8, 2016 Page 2 of Wireless Telecommunications Facility Permit Requirements While the revised Draft Ordinance retains an administrative Director-level decision for certain proposed installations, there is a new permitting scheme for major facilities under which certain facilities are considered by the Planning Commission at a noticed public hearing. There is also an option for applicants to seek a master deployment permit from the Planning Commission for multiple installations. The appropriate duty of the City s Planning Commission is to review land use permits under the discretionary findings of the City s zoning code, whereas the Director of Public Works has the expertise to verify compliance and consider impacts of proposed right-ofway utility installations. The requirement that the Planning Commission approve certain right-of-way facilities of wireless carriers is in conflict with state and federal law where other types of public utility entities using the right-of-way are not required to seek Planning Commission approval. Under both state and federal law, local regulations must be applied equally to all users of the County right-of-way. Under state law, local regulation, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner. 1 Federal law recognizes the authority of States and local governments to manage the public rights of way on a competitively neutral and nondiscriminatory basis. 2 The Federal Communications Commission (the FCC ) has stated that local governments may impose conditions only if they are applied equally to all users of the rights-of-way 3 and may not impose conditions on one user, such as a telecommunications company, in a different manner than imposed on other users. This body of federal and state law requires that a Verizon Wireless application for a facility within the public right of way should be treated as any other public utility application. On a local level, in the vast majority of cases, such an installation requires only an encroachment and/or excavation permit, and does not entail discretionary review. Similarly, appeal rights for such permits are limited. As required Planning Commission review of certain wireless facility installations in the right-of-way constitutes unequal treatment of wireless carriers barred under state and federal law, we suggest that the City return to the original permitting scheme under which the Director reviews all right-of-way wireless facility applications under the specific standards of the Draft Ordinance. The City may consider a provision allowing the Director of Public Works to ask Planning Department staff to prepare an evaluation of aesthetic impacts of certain applications under reasonable Draft Ordinance criteria. This is the practice in jurisdictions such as San Francisco. 1 Cal. Pub. Util. Code (b) U.S.C. 253(c). 3 Second Report and Order, CS Docket 96-46, 209, FCC , adopted May 31, J-2

145 Rancho Palos Verdes City Council February 8, 2016 Page 3 of Application for Wireless Telecommunications Facility Permit (A) Application (2) Barring of Applications for Fiber or Coaxial Cable This new prohibition on encroachment permits for fiber or coaxial cable must be stricken from the Draft Ordinance if other public utility entities using the City right-ofway are allowed to obtain such permits. Such a prohibition would constitute unequal treatment of wireless carriers which is in conflict with state and federal law. Further, changes in nearby utility infrastructure beyond a wireless carrier s control may require carriers to re-design fiber or coaxial cable access after a wireless facility permit is issued, and this provision would prohibit reasonable requests for permits. (B) Application Contents (13) New Information Requirement for RF Exposure Compliance Report This provision has been revised to require exhibits showing location and orientation of all antennas of a proposed facility as well as the areas exceeding FCC exposure limits, and this exceeds the City s authority under federal regulation. The City may only require the carrier to provide the calculations identified in A Local Government Official s Guide to Transmitting Antenna RF Emission Safety issued by the FCC. The revisions should be stricken. (19) Geographic Service Area This provision has been revised to require applicants to provide coverage maps and/or capacity exhaustion information to demonstrate the need for a facility under subsections (a) and (b). A described in our previous correspondence, Verizon Wireless is a public utility whose use of the right-of-way is authorized under California Public Utilities Code 7901, and the City cannot require Verizon Wireless to prove that a rightof-way facility is needed to address a gap in service. There is no relation between the required information demonstrating need and the required findings under Draft Ordinance In fact, the findings emphasize that a carrier need only show it has the right to use the right-of-way. The requirement to submit coverage maps and/or capacity exhaustion information must be stricken. Similarly, as stated in our prior correspondence, Verizon Wireless cannot be required to speculate on future planned facilities and such a requirement is irrelevant where it has a statewide franchise to use the right-of-way. J-3

146 Rancho Palos Verdes City Council February 8, 2016 Page 4 of 6 (22) Temporary Mock-Up The new requirement to post photosimulations at the proposed facility location now should obviate the need for mock-ups in most circumstances and the blanket requirement for mock-ups should be deleted. We previously advised the City that photosimulations prepared from multiple public vantage points are sufficient for the Director to evaluate aesthetic impacts and that mock-ups should only be required at the Director s discretion in the rare case of potential view impairment Review Procedure (B) Application Submittal Appointment We recognize that in the case of multiple site applications, a pre-submittal appointment may be encouraged. But by delaying filing of a single pole application that an applicant could otherwise file on a walk-in basis, the City may initiate a conflict with federal Shot Clock deadlines that require local jurisdictions to review and act on wireless facility applications within specified time periods. See In Re: Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Etc., FCC (FCC November 18, 2009); see also In Re: Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Etc., FCC (FCC October 17, 2014), 258 ( we note that under the 2009 Declaratory Ruling, the presumptively reasonable timeframe begins to run when an application is first submitted. ) While Verizon Wireless appreciates the option for a pre-submittal conference included in the revised Draft Ordinance, the City should ensure that it is not, in the end, delaying any single application Requirements for Facilities within the Public Right-of-Way (A) Design and Development Standards (6) Poles (h) Exception Required (iii) Concealment Requirement for New Poles Placement of new poles should be encouraged by the City when a small wireless facility on a new pole will present less visual impact than additional equipment on an existing pole supporting other utility infrastructure. New pole locations may also allow carriers to place facilities away from intersections or high-visibility corridors. J-4

147 Rancho Palos Verdes City Council February 8, 2016 Page 5 of 6 We previously objected to the requirement that applicants obtain an exception under Draft Ordinance to place new poles, and we suggested that the City instead consider reasonable design standards such as color and proximity of screening vegetation. An exception is still necessary, and this provision now requires concealment of a new pole which is an impossible standard for utility poles placed along roadways. This provision, along with its concealment requirement, should be stricken. (12) Accessory Equipment This provision has been revised to require concealment of above-ground equipment. As stated in our prior correspondence, the requirement that wireless carriers obtain an exception for above-ground equipment or else place equipment underground violates state and federal law as it treats of wireless carriers differently than other users of the right-of-way. The new requirement that any above-ground equipment be concealed exacerbates this problem as other public utilities placing above-ground cabinets in the right-of-way are not subject to the same concealment requirement. Both the requirement to obtain an exception for above-ground equipment and the requirement that it be concealed must be stricken, and the City should adopt reasonable standards for new poles. (15) Lighting (e) Lighting Study Most right-of-way wireless facilities emit no light, and a lighting study should not be required when no light is added by the wireless facility Findings (E) Least Intrusive Means This language of this finding has been revised (and re-lettered), now requiring factual evidence and an exhaustive analysis with a vague reference to all alternatives. As noted in our prior correspondence, demonstrating that a wireless facility is the least intrusive means for providing service is only relevant when a wireless carrier claims a prohibition of service by a local jurisdiction in federal court, and it should not be required for approval if a proposed facility meets reasonable Draft Ordinance criteria. This finding should be stricken Exceptions This provision has been revised to place the responsibility of granting exceptions with the Planning Commission rather than the Director, but the concept remains flawed. J-5

148 Rancho Palos Verdes City Council February 8, 2016 Page 6 of 6 Placing inappropriate judicial duties on the Planning Commission will result in speculative legal judgments. This is evident in new findings for an exception under subsection (B) that allude to federal wireless case law concepts of significant gap and least intrusive alternative, which suggest that a non-engineering Planning Commission is now charged with guessing whether a carrier will file suit in federal court if a proposed facility is denied. We again suggest that the exception process be stricken from the ordinance, and that clear, reasonable criteria be adopted for new pole locations, aboveground equipment and facilities on local residentially-zoned streets. Conclusion The revised Draft Ordinance introduces additional problematic provisions to draft regulations that would already conflict with state and federal law. We urge the City to invest time and work with industry to prepare regulations for right-of-way wireless facilities with clear standards that allow wireless carriers to provide service with minimal visual impacts.. Very truly yours, cc: Dave Aleshire, Esq. Christy Lopez, Esq. Nicole Jules Attachment Paul B. Albritton J-6

149 MACKENZIE & ALBRITTON LLP 220 SANSOME STREET, 14 TH FLOOR SAN FRANCISCO, CALIFORNIA TELEPHONE 415 / FACSIMILE 415 / January 5, 2016 VIA Mayor Ken Dyda Mayor Pro Tem Brian Campbell Councilmembers Susan Brooks, Jerry Duhovic and Anthony M. Misetich City Council Rancho Palos Verdes Hawthorne Boulevard Rancho Palos Verdes, California Re: Ordinance Regulating Wireless Telecommunications Facilities in the Public Right-of-Way City Council Agenda, January 19, 2016 Dear Mayor Dyda, Mayor Pro Tem Campbell and Councilmembers: We write to you on behalf of our client Verizon Wireless regarding the draft ordinance regulating wireless telecommunications facilities in the public right-of-way (the Draft Ordinance ) to be considered at your meeting of January 19, Verizon Wireless only recently became aware of efforts by the City of Rancho Palos Verdes (the City ) to codify regulations for right-of-way wireless facilities, and believes that there are numerous problematic provisions in the Draft Ordinance that conflict with state and federal law. In particular, requirements to demonstrate the need for a new wireless facility and to analyze alternative locations conflict with the California Public Utilities Code, and certain restrictions on placement of facilities conflict with the federal Telecommunications Act. There also appear to be conflicts within the Draft Ordinance, which requires that equipment be placed underground while at the same time including standards for pole-mounted equipment. Certain provisions refer to zoning permits that are irrelevant to the proposed permits for right-of-way wireless facility installations. The Draft Ordinance will benefit from further consideration and consultation with industry, and we propose that adoption of the Draft Ordinance be deferred to allow for needed revisions. Our specific comments on the Draft Ordinance are as follows: J-7

150 Rancho Palos Verdes City Council January 5, 2016 Page 2 of Application for Wireless Telecommunications Facility Permit (B) Application Contents (5) Engineering Plans (a) Minimum Height and Diameter This provision contains ambiguous language and can be read to limit the size of antennas and licensed radio equipment. Requiring wireless carriers to use equipment of the minimum height and size would amount to regulation of the type of technology to be used, and is therefore preempted by federal law. Federal courts have determined that local jurisdictions may not dictate the technology used by wireless providers. See New York SMSA v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 2010). Requiring very small antennas could result in the need to deploy additional antennas to achieve a service objective. This requirement should be deleted. (6) Justification Study of Coverage Gap and Least Intrusive Means Verizon Wireless, as a telephone corporation, has been granted a statewide right to use the public right-of-way for the provision of its services under California Public Utilities Code 7901, and under Public Utilities Code , the City is limited to regulating the time, place and manner in which Verizon Wireless occupies the right-ofway. As the franchise to use the right-of-way is granted under state law, the City may not lawfully require Verizon Wireless to justify the need for such use through a coverage gap analysis. Demonstration of a coverage gap has no relation to required findings for issuance of a wireless telecommunications facility permit under Draft Ordinance The requirement to demonstrate a coverage gap must be deleted. With respect to the demonstration of least intrusive means to provide service, Verizon Wireless does not need to establish its right to use the right-of-way over any other location outside the right-of-way. The City may not, under state law, require Verizon Wireless to evaluate alternatives to be used in lieu of the right-of-way. This requirement should clarify that carriers need only to evaluate alternatives within the public right-of-way and only in those circumstances where the proposed facility will create impacts that impede public use of the right-of-way. (10) Materials for Exception Application As discussed below, the exception granted by the Director under Draft Ordinance obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-of-way. J-8

151 Rancho Palos Verdes City Council January 5, 2016 Page 3 of 10 (16) Noise Study Certain new equipment boxes used for right-of-way facilities emit no noise, and for noiseless installations, applicants should be allowed to submit manufacturer specification sheets indicating that equipment is silent instead of a noise study prepared by an engineer. (18) Landscape Plan Many pole-mounted wireless facilities in the right-of-way are very small, present minimal visual impacts and should not require any landscaping. This requirement should be imposed only where landscaping is appropriate. (19) Master Plan This submittal requirement requests a projection of a carrier s future wireless facility installations, but such projections would be entirely speculative due to changing voice and data demand, varying use patterns and new technology. Such projections may be theoretically interesting but rarely shed light on future deployment of a dynamic wireless network. Demonstration of any future plans should not be required as Verizon Wireless s use of the right-of-way is authorized by state law. In lieu of a master plan, the City should consider requiring applicants to provide a list of existing facilities and pending applications. (22) Temporary Mock-Up Mock-ups of proposed facilities may be helpful in certain situations but should not be required for locations where a facility poses no visual impacts or encounters no opposition. Photosimulations provide sufficient visual representation for the Director to evaluate visual impacts. Mock-ups should only be required at the Director s discretion. (C) Application Contents Modification of Existing Facility For modifications that qualify as eligible facilities requests under 47 U.S.C. 1455, applicants may only be required to submit information to determine whether the modification is an eligible facilities request according to rules adopted by the Federal Communications Commission codified as 47 C.F.R These limitations must be better reflected in the Draft Ordinance. (E) Independent Expert Any third-party consultants evaluating certain technical aspects of an application for the City should be engineers registered in the State of California. As discussed above, Verizon Wireless does not need to demonstrate a significant gap in service as its use of J-9

152 Rancho Palos Verdes City Council January 5, 2016 Page 4 of 10 the right-of-way is authorized by state law, and any analysis of alternative locations must be limited to right-of-way locations and only when a facility may create impacts that impede public use of the right-of-way. Technical information will only be relevant where Verizon Wireless seeks to show why a particular alternative will not provide required service Review Procedure (B) Appeal to City Council Wireless telecommunications facilities permits issued for right-of-way wireless facilities should not be appealable to the City Council where encroachment permits granted to other utilities are not similarly appealable Requirements for Facilities within the Public Right-of-Way (A) Design and Development Standards (1) General Guidelines (a) Design Techniques In addition to screening, undergrounding and camouflage options to minimize visual impacts, the City should consider techniques for pole-mounted equipment such as painting to match pole color and rotation of pole-mounted equipment away from predominant views. Many new pole-mounted facilities in the right-of-way are very small, and painting and equipment rotation are sufficient to render such facilities unnoticeable. In some locations, small pole-mounted equipment boxes are concealed behind existing traffic signs. As discussed below, the City may not require Verizon Wireless to place equipment underground if other entities occupying the right-of-way are not subject to the same requirement. (c) Private Residential Views The Draft Ordinance cannot protect private views from residential structures of telephone corporation facilities in the public right-of-way. The City is limited by Public Utilities Code 7901 which only limits right-of-way facilities that incommode the public use of the road. See California Public Utilities Code While federal case law provides for limited aesthetic review of the right-of-way facilities of telephone corporations and their effect on public views from the right-of-way, such review does not extend to private views of telephone corporation facilities. (2) Notice J-10

153 Rancho Palos Verdes City Council January 5, 2016 Page 5 of 10 By reference to the City s zoning regulations for noticing, this provision requires public notice to property owners within 500 feet of a proposed facility. Traditional land use noticing for right-of-way facilities would be inappropriate where 500 foot radius noticing would include yards or homes that have no relation to the street where the proposed facility is to be located. The City should consider a 150-foot linear noticing along the right-of-way where the facility is to be located. (5) Equipment The City s requirements for equipment mounting distances must comply with California Public Utilities Commission General Order 95 which specifies certain safety clearances for antennas and wireless equipment. The requirement to flush-mount antennas would generally conflict with the two-foot horizontal separation from the pole required by General Order 95 Rule 94.4(E), and the City should instead encourage the use of side-arm antenna mounts which in certain cases may eliminate the need to extend a pole s height to provide optimal signal propagation. The requirement that antennas be situated as close to the ground as possible should be stricken as small antennas present minimal visual impacts. Lowered antenna heights may require installation of additional antennas to meet a service objective. (6) Poles (a) Requirement to Locate on Arterial Streets By a reference to Draft Ordinance regarding exceptions, this provision limits Verizon Wireless s state-mandated right to place wireless facilities on most City rights-of-way unless Verizon Wireless proves that this limitation violates state or federal law. There are few arterial streets in Rancho Palos Verdes. Restricting placement of small right-of-way wireless facilities, which may have a limited coverage area extending only 500 feet, could prohibit service to neighborhoods distant from arterial streets in violation of the Telecommunications Act, specifically 47 U.S.C. 332(c)(7)(B)(i)(II). We suggest that the City create a preference for arterial streets but allow placement of right-of-way facilities on all streets. As discussed below, the exception granted by the Director under Draft Ordinance obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-of-way. (b) Prohibition on New Poles The City should not require an exception for carriers to place new poles in the right-of-way. Though Verizon Wireless prefers to place wireless facilities at existing pole locations and appreciates that the City allows for replacement of existing poles, existing poles locations may not meet service objectives. Verizon Wireless s statemandated right to occupy the right-of-way allows it to place new poles to support wireless equipment in the same manner that other telephone corporations regulated by the J-11

154 Rancho Palos Verdes City Council January 5, 2016 Page 6 of 10 Public Utilities Commission may place new utility poles to support their equipment. As discussed below, the exception granted by the Director under Draft Ordinance obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-of-way. We suggest that the City create a preference for existing pole locations but allow for placement of new poles if required to meet a service objective. (c) Utility Poles As noted above, General Order 95 specifies safety clearances for antennas and wireless equipment mounted to utility poles. By restricting antennas to a height not exceeding 48 inches above an existing utility pole, this provision contradicts the minimum six foot clearance above electrical supply lines required by General Order 95 Rule 94. The requirement that wireless equipment be mounted no less than 16.5 feet above the road surface only serves to increase visibility of such equipment. Southern California Edison may require that electrical meters be mounted a specific distance above ground level. (e) Replacement Poles The City should allow a modest increase in height for replacement poles to meet coverage objectives and General Order 95 safety clearance and structural requirements. Pole replacement requirements are governed by General Order 95 and rules established by the responsible utility under the joint pole authority. The City cannot arbitrarily dictate pole replacement specifications. (f) Pole-Mounted Equipment Volume Limitation A limitation of six cubic feet in volume for pole-mounted equipment is overly restrictive. Ventura County recently proposed regulations for right-of-way facilities that allow for administrative approval of small cell facilities with equipment volumes of up to 8.2 cubic feet. See Ventura County Code of Ordinances 12803(i)(1), While a jurisdiction may create incentives for certain equipment dimensions, blanket limitations on dimensions violate federal law as discussed above. (h) Exception Required for New Poles As noted above in our comments to Draft Ordinance (A)(6)(b), the City cannot require carriers to obtain an exception under Draft Ordinance to place new poles in the right-of-way. Rather, the City should consider reasonable design standards for new poles, such as color, material and screening vegetation. (12) Accessory Equipment Undergrounding Requirement J-12

155 Rancho Palos Verdes City Council January 5, 2016 Page 7 of 10 The requirement to place equipment underground violates both state and federal laws, which state that local regulations must be applied equally to all users of the rightsof-way. Under state law, local regulation, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner. See California Public Utilities Code (b). Federal law recognizes the authority of States and local governments to manage the public rights of way on a competitively neutral and nondiscriminatory basis. See 47 U.S.C. 253(c). The Federal Communications Commission has stated that local governments may impose conditions only if they are applied equally to all users of the rights-of-way and may not impose conditions on one user, such as a telecommunications company, in a different manner than imposed on other users. See Second Report and Order, CS Docket 96-46, 209, FCC , adopted May 31, This body of federal and state law requires that a Verizon Wireless application for a facility within the public right-of-way should be treated as any other public utility application. In other words, Verizon Wireless cannot be obligated to underground equipment that is equivalent or similar in size and appearance to facilities mounted on right-of-way poles by other utilities. As discussed below, the requirement to obtain an exception under Draft Ordinance for above-ground equipment (limited to five feet in height) obligates the Director to make speculative legal judgments is an unworkable means to regulate the use of right-of-way. Certain development standards in the Draft Ordinance, including Sections (A)(6)(c) and (A)(6)(f), clearly contemplate polemounted equipment, and the City should allow for pole-mounted equipment with standards such as painting and rotation to minimize visual impacts. Screening or camouflage requirements for an electrical meter may contradict Southern California Edison policies. (18) Modification The City may not require carriers to place equipment underground or reduce equipment size when modifying a facility. As noted above, the requirement to place equipment underground violates state and federal law, and the requirement to reduce equipment size amounts to impermissible dictation of technology barred by federal law. Finally, federal law requires administrative approval of modifications that are eligible facilities request and does not allow for discretionary conditions. (B) Conditions of Approval (13) Prohibition of Facilities within Drip Line This condition of approval should be revised to exclude pole-mounted equipment. Pole-mounted equipment has no effect on the health of nearby trees that may provide screening. J-13

156 Rancho Palos Verdes City Council January 5, 2016 Page 8 of Findings (D) Proposed Installation is Least Intrusive Means Possible By basing this finding on the least intrusive means standard set forth in federal case law, the Draft Ordinance attempts to create a new hurdle out of the federal protection afforded wireless carriers under 47 U.S.C. 332(c)(7)(B)(i)(II), which provides, in relevant part, that the City s regulation of wireless facilities shall not prohibit or have the effect of prohibiting the provision of personal wireless services. Federal courts have interpreted this law to mandate approval of wireless facilities where a federal court has determined that the applicant has identified a significant gap and the facility represents the least intrusive means to fill that gap, even where the local jurisdiction has identified substantial evidence that would otherwise warrant denial of the application under local codes. See, e.g., MetroPCS v. City and County of San Francisco, 400 F.3d 715 (9th Cir. 2005). These cases have repeatedly held that evaluations of significant gap and least intrusive means are judicial determinations that defy any bright-line definition. See, e.g., Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716 (9th Cir. 2009) (citing numerous cases that make different factual findings of a significant gap). This approach must be rejected because it would place the City in a position to circumvent the judgment of federal courts and the protections afforded Verizon Wireless under federal law. The City should abandon the least intrusive means standard and we suggest revising this finding to compel applicants to minimize aesthetic impacts that may impede public use of right-of-way RF Emission and Other Monitoring Requirements These requirements for post-installation testing of radio frequency emissions exceed the City s authority when a facility complies with the Federal Communications Commission s emissions standards. The City may only require the carrier to provide the calculations identified in A Local Government Official s Guide to Transmitting Antenna RF Emission Safety. Recent case law has determined that emissions testing requirements by local jurisdictions are preempted by federal law. See Crown Castle USA Inc. v. City of Calabasas (Los Angeles Superior Court BS140933, 2014) ( the regulation of a facility's planned or ongoing operation constitutes an unlawful supplemental regulation into an area of federal preemption. ) Permit Expiration Rather than terminating permits after ten years and requiring permittees to apply for new permit, the City should allow for renewal of an existing permit within six months of permit expiration. There is no reasonable justification to require a new permit for a facility that is not substantially changed from the originally-approved installation and remains in compliance with conditions of approval. J-14

157 Rancho Palos Verdes City Council January 5, 2016 Page 9 of Exceptions Under the Draft Ordinance, an exception is required to place wireless facilities on certain streets, to place a new pole in a new location and to place accessory equipment above ground, but the process for granting an exception outlined in this provision places the burden on the applicant to prove the illegality of the City s regulations while absolving the City from any meaningful evaluation of the impacts of the proposed facility. Requiring the Director of Public Works to find that Draft Ordinance requirements violate state or federal law places inappropriate judicial duties on the Director and would result in speculative legal judgments. This provision uncovers the City s concern that provisions of the Draft Ordinance will result in denials that violate state or federal law, and we have outlined several of these violations above. Such expected violations should be resolved prior to adoption of the Draft Ordinance Location Restrictions As noted above, prohibiting placement of wireless facilities on most City streets or on new poles is contrary to state and federal law, and the City should instead create preferences for arterial streets and existing pole locations while allowing for wireless facilities on all streets and in new pole locations. As discussed above, the exception granted by the Director under Draft Ordinance obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-ofway State and Federal Law This provision appears to apply to conditional use permits issued under Title 17, Zoning, of the Rancho Palo Verdes Municipal Code, whereas the Draft Ordinance creates a wireless telecommunications facility permit for right-of-way facilities issued by the Director with findings distinct from conditional use permits. This inconsistency should be resolved. Additionally, as with Draft Ordinance , this provision belies the City s concern that Draft Ordinance conflicts with state or federal law. Such conflicts should be addressed prior to adoption and not left to subsequent interpretations made solely by the City Attorney. Conclusion The Draft Ordinance must be revised in order to avoid conflicts with state and federal law. To this end, Verizon Wireless encourages the City to defer adoption of the Draft Ordinance to allow for City staff to meet with industry representatives. Verizon Wireless looks forward to an opportunity to work with the City of Rancho Palo Verdes to craft a workable ordinance that limits future conflict. J-15

158 Rancho Palos Verdes City Council January 5, 2016 Page 10 of 10 Very truly yours, Paul B. Albritton cc: Dave Aleshire, Esq. Christy Lopez, Esq. Nicole Jules J-16

159 Nicole Jules From: Sent: To: Subject: Christy M. Lopez Tuesday, February 16, :55 PM Nicole Jules Fwd: Last minute ordinance comments Sent from my iphone Begin forwarded message: From: Date: February 14, 2016 at 10:44:23 AM PST To: Subject: Last minute ordinance comments Hi Christy, There are a few items in the wireless ordinance I wanted to follow up on prior to Tuesday s CC meeting, a couple of clarifications and a suggestion. * Public Notification Section (B)(22)(b) (Application contents) states that public notification for residents within 500 feet will be 5 days prior to the mock up period. As the 30 day mock up must be complete for the application, this would be prior to application submittal. Section (C)(1) (Notice; Decisions) describes notification under RPV MC Section which also requires notification of residents within 500 feet with timing that would be after application submittal. Is there a timing discrepancy or is this a different notification? * Noise Regulations Section (A)(16) (Design guidelines) states that the 55 dba noise limit applies at a three foot distance. Regarding the lower 45 dba residential limit, the sentence is ambiguous as to the distance as it isn t specified. This came up during the first wireless workshop and my recollection was the intent was that it also applied at three feet (I agree). I bring this up as after the second workshop, one of the industry reps told me they thought it should apply at the property line. This ambiguity could cause trouble. * Location Restrictions The biggest ordinance concern I have heard is from residents that live on or adjacent to collectors/arteries. The exact same site regulations apply to all sites but the approval process is different for these locations. Residents are concerned Public Works will rubber stamp these sites without a thorough vetting; this fear isn t unreasonable based on past experience. Does it make sense to add a third locations restriction to Section ? Something like, Public right of way of any street if within a 100 distance to any residential structure. This would not prohibit these locations but ensure they require public hearings. It would also incentivize installers to select sites on collectors/arteries that are not right next to homes. One other comment, you may have seen I submitted about 25 pages of process documentation to the City. Obviously this wasn t meant to be anything official, but to give staff some guidance and to set expectations regarding the documentation level required to effectively manage a complex process. I m considering submitting this to the City Clerk 1 J-17

160 on Monday potentially making it part of the staff report public archive for Tuesday s meeting. Let me know if you have any concerns about this, as I don t want to muddle up activity you already have underway. Thanks for all you have done on this. I truly believe the new ordinance will be remembered as a proud achievement by the City, along the lines of the View Protection Ordinance. I ve heard from a few people in Palos Verdes Estates asking about what they can do to implement a tough ordinance like RPV s! That would have been unthinkable three months ago. Jeff 2 J-18

161 Wireless Facility Permit Approval Process Documentation and Recommended Guidelines Jeff Calvagna 11 February 2016 K-1

162 Wireless Process Timeline Shows key milestones and process cadence needed to meet shot clock time limits K-2

163 New Site Process Milestones (typical) NOTE: need to clarify if appeal must fall within the shot clock window, rulings are contradictory and ambiguous 150 days maximum unless paused by applicant delays or extended by written mutual agreement K-3

164 Co-location Site Process Milestones (typical) NOTE: need to clarify if appeal must fall within the shot clock window, rulings are contradictory and ambiguous 90 days maximum unless paused by applicant delays or extended by written mutual agreement K-4

165 Wireless Facility Application Process Flow Diagram Shows major process steps, key decision points, and process step relationships K-5

166 Wireless site proposed Wireless Facility Application Process Recommended Presubmittal conference Complies with city ordinance and guidelines? No Yes Mock-up Encroachment Permit request and issuance Public notification sent Mock-up Installation and 30 day period Application submitted Application requirements met? Yes Application accepted Ordinance compliance assessment Compliant to ordinance? No Request correction and resubmission Corrections made? Yes No Application rejected Yes No Non-compliant applications not eligible for administrative permit Permit type determination See separate detail page Yes Administrative Permit? No Public comments to PW Director Refer to PC based on findings? Yes No Director option to refer applications to the Planning Commission Public comments to Planning Commission Planning Commission hearings PW Director makes permit decision Planning Commission makes permit decision See separate detail page Decision Appealed? No Yes Planning Commission or City Council as appropriate Appeal authority makes permit decision Final permit decision K-6

167 Permit Type Determination Detail Per RPV Code (C) Per RPV Code Per RPV Code (all) Application Master Deployment Plan? No Location No View No Requires No restriction protection ordinance applies? applies? exceptions? Yes Yes Yes Yes Master Deployment Permit Major Permit Administrative Permit Per RPV Code Local street per RPV general plan New pole, not a replacement Within 100 feet to residential structure (proposed) K-7

168 Permit Decision Detail Per RPV Code Application findings Met required findings? Yes Findings and decision in writing Permit approve decision No Ordinance exception applies? Yes Met required findings? Yes No No Per RPV Code Findings and decision in writing Permit deny decision K-8

169 Wireless Facility Application Process - Shows process roles, responsibility, authority, and accountability (RRAAs) K-9

170 Director of Public Works (1/3) Roles Manage overall wireless application process within the required shot clock time period Provide permit approve/deny decision for administrative permits Responsibilities Accept installation proposals, encourage presubmittal conference Provide informal public notification via city website once site is proposed Conduct presubmittal conference if requested, provide applicant guidance regarding city application requirements and site design and location regulations, engage assistance of wireless technical consultant as needed Formally notify residents in writing within 500 feet of proposed site 5 business days prior to mock-up installation Review proposed mock-up, issue mock-up encroachment approval as required, ensure mock-up as constructed accurately represents proposed site, ensure mock-up is in place for 30 days Receive application and initiate shot clock with application submittal. Manage shot clock including pauses as required by applicant delays or extensions by written mutual agreement. Perform application completeness assessment to ensure provided documentation meets ordinance requirements. Complete assessment within 14 (TBR) calendar days for new sites, 7 (TBR) days for co-locations. Engage assistance of wireless technical consultant in assessment. K-10

171 Director of Public Works (2/3) Responsibilities (cont'd) Accept or reject application based on completeness, rejections to be in writing listing application shortfalls. Perform compliance and installation justification assessment to ensure proposed site meets ordinance requirements. Complete assessment within 14 (TBR) calendar days for new sites, 7 (TBR) days for co-locations. Engage assistance of wireless technical consultant in assessment Work with applicant to correct non-compliant applications Determine wireless application permit type, notify applicant and Planning Commission if type is non-administrative and public hearings are required If site is eligible for an administrative permit: Receive and consider public comments Determine if new findings or other or considerations warrant permit type change and/or transfer to Planning Commission Make findings required by ordinance in writing with decision to accept or deny facility permit If site is not eligible for an administrative permit: Assist Planning Commission with site history and earlier assessment findings Perform post-installation inspection of approved site, ensure installation matches approved design and complies with all applicable regulations. K-11

172 Director of Public Works (3/3) Authority Mock-up encroachment permit approval Application completeness assessment, decision to accept application Application compliance assessment and permit type determination Administrative permit approve/deny decision Final inspection approval Accountability The People of Rancho Palos Verdes ensure ordinance is fully applied and enforced within required time limits to protect the city's aesthetics and character and its resident's quality of life Applicant ensure ordinance is executed in a fair and equitable manner within required time limits K-12

173 Planning Commission Role Manage and conduct public hearings as required to provide permit approve/deny decisions within the required time constraints Responsibilities If site is not eligible for an administrative permit: Obtain relevant documentation, prior findings, and history from the Director of Public Works Receive and consider public comments Conduct public hearing(s) to review site design, installation justification, and resident comments Determine if any requested exception is warranted under the ordinance (if applicable) Make findings required by ordinance in writing with decision to accept or deny facility permit Conduct appeal hearings for administrative permits (if required) Authority Non-administrative permit approve/deny decision Administrative permit appeal approve/deny decision (if required) Accountability The People of Rancho Palos Verdes ensure ordinance is fully applied and enforced within required time limits to protect the city's aesthetics and character and its resident's quality of life Applicant ensure ordinance is executed in a fair and equitable manner within required time limits K-13

174 City Council Role Manage and conduct appeal public hearings as required to provide permit approve/deny decisions within the required time constraints Responsibilities Conduct appeal hearings for non-administrative permits (if required) Authority Non-administrative permit appeal approve/deny decision (if required) Accountability The People of Rancho Palos Verdes ensure ordinance is fully applied and enforced within required time limits to protect the city's aesthetics and character and its resident's quality of life Applicant ensure ordinance is executed in a fair and equitable manner within required time limits K-14

175 Non-Utility Pole Wireless Facility Architectural Guideline Recommendations (Streetlights, traffic signals, etc.) K-15

176 Non-utility pole Wireless Installation Architectural Compatibility Guidelines (1/5) Panel-style antennas on an existing or replacement pole Antenna installation not to extend height of existing pole Maximum two antenna panels per pole Antennas located as close to top of pole as possible to minimize conspicuousness Antenna panels not to exceed the following sizes, larger antennas require technical justification demonstrating clear need: Antenna panel surface area not to exceed 2.0 square feet Antenna panel height not to exceed 2'6 Antenna panel depth not to exceed 7. Antenna to be installed flush mount against pole, back of antenna spacing to pole not to exceed 2 Antennas to be professionally painted to match pole with durable, non-fading paint, no on-site spray can painting K-16

177 Non-utility pole Wireless Installation Architectural Compatibility Guidelines (2/5) Pole-top antenna on an existing or replacement pole Antenna installation not to exceed the following sizes, larger antennas require technical justification demonstrating clear need: Antenna extension not to increase pole height more than 2 4 Antenna diameter including any canister cover not to exceed existing pole diameter at attachment point A narrow pole-top whip antenna with less that 2 diameter may exceed height limit above but to not exceed 3'6 in height Antenna and/or enclosing canister to be designed to architecturally match pole, design and attachment to appear as a natural extension of the pole Antennas and/or canister to be professionally painted to match pole with durable, non-fading paint, no on-site spray can painting K-17

178 Non-utility pole Wireless Installation Architectural Compatibility Guidelines (3/5) Cables and Routing Cables to be located fully within pole except for short length of RF cable(s) for attachment to panel antennas Pole-top antenna installations to keep cables entirely within the pole/antenna/canister assembly No service loops or excess cable outside pole Installation to utilize right angle adapters for panel antenna attachment when feasible to minimize external cable length Installation to utilize minimally sized cable egress holes to reduce visibility Cables and egress grommets to be professionally painted to match pole with durable, non-fading paint, no on-site spray can painting except small touch ups as needed Cable routing between pole and support equipment to be fully underground K-18

179 Non-utility pole Wireless Installation Architectural Compatibility Guidelines (4/5) Signs/Decals RF radiation warnings to be placed only next to antenna, not at ground level RF radiation warnings installed to be no larger than minimum size required by law All visible manufacturer stickers or labels to be removed from any pole mounted equipment Any required site identification (owner, phone number, etc.) to be placed in an inconspicuous fashion away from casual view K-19

180 Utility pole Wireless Installation Architectural Compatibility Guidelines (5/5) Support Equipment All support equipment to be located off the pole and hidden from sight. Only antennas are allowed on the pole. All support equipment to be underground unless infeasible as determined by the city. Underground equipment to use the minimal size, height, and quantity of ventilation stacks required to meet air flow needs. If allowed by the city, above ground equipment to be screened from view using methods architecturally compatible with the existing environment (foliage, stone walls, etc.). Foliage to be maintained. If required, visible electric meters to be the smallest size possible and placed inconspicuously and away from casual view Encourage use of passive (silent) equipment cooling methods to meet ordinance noise requirements K-20

181 Utility Pole Wireless Facility Architectural Guideline Recommendations (Wooden telephone poles) K-21

182 Utility pole Wireless Installation Architectural Compatibility Guidelines (1/4) Panel-style antennas on a utility pole Antenna installation to comply with all aspects of CPUC General Order 95 Maximum two antenna panels per utility pole Surface area of each panel area not to exceed 2.0 square feet with antenna depth not to exceed 7. Larger antennas require technical justification demonstrating clear need. For antennas located below existing circuits on cross-arms, antenna spacing not to exceed 3'2 from the utility pole surface Cross-arms are to be mounted orthogonal to the pole and level with respect to the horizon. Cross arms are not to sag over time. Antennas to be mounted to the cross arm parallel to the pole. For antennas located above all existing circuits, antennas are to be flush mounted to the pole. Back of antenna to be spaced no more than 2 from pole surface. Antennas to be professionally painted to match pole with durable, non-fading paint, no on site spray can painting K-22

183 Utility pole Wireless Installation Architectural Compatibility Guidelines (2/4) Cables and Routing Cable installation to comply with all aspects of CPUC General Order 95 Cables to be routed through conduit mounted to utility pole surface. Conduit diameter to be the minimum size required to accommodate cables. No service loops or excess cable outside of conduit. No free cable routing outside of conduit unless as required for antenna attachment. Any free cable routing to be fully supported and attached to structure such as cross arms or mounting brackets. Installation to utilize right angle adapters for panel antenna attachment when feasible to minimize unsupported cable length Conduit and visible cables to be professionally painted to match pole with durable, non-fading paint, no on-site spray can painting except small touch ups as needed Cable routing between pole and support equipment to be fully underground K-23

184 Utility pole Wireless Installation Architectural Compatibility Guidelines (3/4) Signs/Decals Signage to comply with all aspects of CPUC General Order 95 RF radiation warnings to be placed only next to antenna, not to be placed at ground level unless required by law RF radiation warnings installed to be no larger than minimum size required by law All visible manufacturer stickers or labels to be removed from any pole mounted equipment Any required site identification (owner, phone number, etc.) to be placed in an inconspicuous fashion away from casual view K-24

185 Utility pole Wireless Installation Architectural Compatibility Guidelines (4/4) Support Equipment All support equipment to be located off the pole and hidden from sight. Only antennas, support structures such as cross arms, and conduit-routed cable are allowed on the pole. Passive power dividers or couplers may be mounted flush with cross arms if the location and cable routing is inconspicuous. All support equipment to be underground unless infeasible as determined by the city. Underground equipment to use the minimal size, height, and quantity of ventilation stacks required to meet air flow needs. If allowed by the city, above ground equipment to be screened from view using methods architecturally compatible with the existing environment (foliage, stone walls, etc.). Foliage to be maintained. If required, visible electric meters to be the smallest size possible and placed inconspicuously and away from casual view Encourage use of passive (silent) equipment cooling methods to meet ordinance noise requirements K-25

186 Frequently Asked Questions about Wireless Facilities on Wooden Utility and Wooden Streetlight Poles 1. Can the City prohibit the installation of wireless facilities on wood poles? No. Under State law, telecommunications carriers have a right to install wireless facilities on wood poles in the public right-of-way. The City, however, regulates the design, location, and placement of those facilities through Article 25 of the Public Works Code. The City will also conduct an environmental review under the California Environmental Quality Act (CEQA). LINK: SF Government TV video of Board of Supervisors committee hearing on Article Does the City prefer wireless facilities on wood poles? No. Our preference is for wireless carriers to work with the community, and Planning Department on welldesigned and scale-appropriate rooftop-mounted facilities (example photo simulations on pages 37 & 38, and a second example on pages 32 & 33); which are then complemented by wireless facilities on steel poles. Wireless facilities on rooftops and steel poles are generally less intrusive than wood pole-mounted facilities. L-1

187 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles 3. Does the City s permit review address health concerns? Only in part. Under federal law (1996 Telecommunications Act), the City is prohibited from denying a permit to construct a wireless facility based on health concerns over RF emissions, provided that the emissions from the facility comply with Federal Communications Commission (FCC) standards. In order to assure compliance with FCC standards, the Department of Public Health (DPH) reviews every application for a wireless facility and generally requires an RF emissions study for each facility. If the facility is approved and installed, then field testing is required to ensure the facility meets the FCC s standards. Residents can ask for testing of their dwelling units at no charge (free) by contacting the City (Planning, Public Works, or Public Health). Testing is also required every time a permit is renewed, and every time the site is modified (replacing/adding antennas or equipment), when those modifications may affect the antenna(s) output. The City has not seen a pattern of wireless facilities on wooden poles exceeding RF emissions standards set by the FCC. 4. The Radio-Frequency (RF) report indicates the maximum RF exposure level at ground level. Does the RF report take into account the RF exposure level on upper stories of residences closer to the antenna? When an RF report is prepared it takes into account the location, orientation, and output of the antenna, relative to the nearest publicly-accessible areas, such as balconies, roof decks, and nearby dwellings (including upper stories). The RF emissions at any publiclyaccessible area must also comply with the standards set by the Federal Communications Commission (FCC). Field testing can be arranged at no charge for residents, including from within their dwelling. Antennas are typically placed either midway up the wooden pole (side-arm configuration) or on top of a pole (top-mount). When antennas are placed in a side arm configuration and the placement is also parallel and close to a building, the antennas are typically setup in such a manner where the RF emissions are focused ( sectorized pattern ) up and down streets, and not directly toward the building behind the antenna. In other words, this means that while the antenna enclosure may be round in shape, the RF emissions are not necessarily sent in all directions for antennas next to a building. Further information can be obtained from the Department of Public Health. 5. How can I get more information about my health concerns? A copy of the DPH report for every proposed and existing wireless facility can be obtained from Patrick Fosdahl at (415) or Patrick.Fosdahl@sfdph.org. In addition, general information about the safety of wireless facilities can be found on the FCC s web site (link). Link 1: First Sample DPH Radio-Frequency (RF) emissions, and noise review. Link 2: Second Sample RF Emissions Report Updated December 2015 L-2 2

188 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles 6. Is a permit required from the City? Yes. The Department of Public Works (DPW) issues permits* for wireless facilities in the public right-of-way under Article 25 of the Public Works Code, and Department of Public Works (DPW) Order No As required by Article 25, DPW refers applications for wireless permits to the: Department of Public Health (DPH) for radio frequency (RF) emissions and noise review (see item 11). Planning Department staff for design, environmental (CEQA), and historic preservation review. These facilities are not reviewed by the Planning Commission. Recreation and Parks Department for review, if the facility is located near a public park or plaza. *Permits for wireless facilities on lands under the jurisdiction of the Port of San Francisco are issued by the Port. For a map of Port jurisdiction visit choose the Jurisdiction box on the left, and Port of San Francisco. 7. Does the City s permit review address the design of the facility? Yes. The Planning Department works with each applicant for a wireless facility permit to consider a design that is appropriate for the proposed location. Each design has its own challenges, such as the overall height of a top-mounted antenna, or the potential for a side-mount antenna to impair views. In addition, City staff continually engages with wireless carriers and equipment manufacturers to seek designs that are less intrusive. Residents are encouraged to discuss their concerns with the Planning Department s Wireless Planner, Omar Masry, at (415) or Omar.Masry@sfgov.org. LINK: Design Preferences for Wireless Facilities on Wooden Poles 8. Who owns the wood poles? The majority of wood utility poles in San Francisco are managed by the Joint Pole Association (JPA), which is an association of utility companies and government agencies. Other wood poles are solely owned by Pacific Gas & Electric. These are typically streetlight-only wood poles. The City and County of San Francisco is a member of the JPA. 9. How many wireless facilities are there in San Francisco? As of April 2015, there are 383 existing wireless facilities on wood poles and approximately 700 wireless facilities outside of the public right-of-way; primarily on building rooftops. Map of 1,000+ existing wireless facilities in San Francisco (map does not include all of the 383 existing facilities mounted on wooden utility poles): Updated December 2015 L-3 3

189 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles 10. Does the City receive revenue from the use of wooden utility poles the facilities? No. But the San Francisco Public Utilities Commission has started to allow the installation of wireless facilities on its (steel) street light poles, and the San Francisco Municipal Transportation Agency is allowing the installation of wireless facilities on its (steel) support poles. Both agencies will receive license fees for use of their poles. Link to information about wireless facilities on steel light and transit poles. 11. Who do these facilities serve and what companies operate them? The wireless facilities installed on utility poles are primarily intended to serve customers of wireless carriers licensed by the FCC to operate in San Francisco including AT&T Mobility, Sprint, T- Mobile, and Verizon Wireless. You might see signs on the utility poles that identify companies such as Crown Castle (NextG), ExteNet Systems, and Mobilitie as the owner of the facilities. These companies are authorized by the California Public Utilities Commission (CPUC) to install and operate the wireless facilities on wooden poles on behalf of their wireless carrier customers, but they still must obtain permits from DPW. The CPUC is a distinct State agency which regulates various utilities throughout California. The San Francisco Public Utilities Commission (SFPUC) is not a part of the CPUC. 12. Do the antennas generate noise? No. However, some, but not all wireless facilities feature cooling fans within the equipment cabinets, in order to regulate the temperature for the computers inside. If an existing system seems to be generating excessive noise, please contact the Department of Public Health at (415) In some instances, steps can be taken to reduce noise from cooling fans. 13. Once DPW has issued a wireless permit can other carriers install additional facilities on the same wooden pole? Generally, there will only be one wireless facility on each pole. CPUC regulations generally prohibit installing enough equipment on a utility pole that would accommodate two separate wireless facilities. It is possible, however, that a single wireless facility on a utility pole could serve more than on carrier. 14. Can carriers install new (wood) poles on my street to support their wireless facilities? No. DPW will generally only allow new wood poles to replace existing poles. Pole replacements are sometimes needed to ensure the pole can handle the load of the equipment or for wider vertical separation between various utility facilities on the pole. Planning staff continues to work with carriers and PG&E to seek less intrusive pole height replacements. 15. Is the City planning to underground the wood poles? There are no pending proposals for new neighborhood-wide undergrounding efforts. In the event an undergrounding effort begins, the wireless carriers would be required (as a condition of their utilities permit) to remove their facilities from the wooden poles. 16. What equipment do wireless carriers typically install on the wood poles? A typical wireless facility on a utility pole consists of one or more antennas and one or more equipment boxes. To meet CPUC requirements, the antennas will be mounted either at the top of the pole or on side arms midway down the pole. The equipment boxes will be attached to the pole. While every system varies, the equipment boxes typically include an electric meter, a disconnect switch, and computers to control the antennas. Some wireless facilities also feature an equipment box, on the same pole or a nearby pole, that contains batteries used to provide temporary emergency power to the facility in case of a power outage. Updated December 2015 L-4 4

190 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles 17. Can carriers change the equipment they installed on a permitted wireless facility? Yes. Consistent with federal law, Article 25 of the Public Works Code generally allows modifications of permitted wireless facilities, provided those modifications are within certain limits. 18. Can I protest the installation of a wireless facility on my block? Yes. If you have received notice that a wireless facility has been proposed to be installed on your block it means DPW has tentatively approved the application. It also means that the Planning Department, DPH, and possibly the Recreation and Park Department have recommended that DPW grant the permit. While you may protest the issuance of the permit, you must do so in the time set forth in the notice, which will be 20 days after the notice is postmarked. DPW will not consider an untimely protest. If your protest is timely, DPW will hold a hearing to determine whether to issue the permit. DPW will notify you of the date and time for the hearing. You will be given the opportunity during the hearing to explain the reasons for your protest. Contact information for protests can be found on the DPW web site (link). 19. Can I appeal DPW s issuance of a wireless permit? Yes. Whether or not you protested the permit you may appeal DPW s issuance of the permit to the Board of Appeals. As with protests, you must file your appeal in the time required by City law, which is generally 15 days after the permit is issued. More information about filing an appeal can be found on the Board of Appeals web site (link). Only the environmental determination may be appealed to the Board of Supervisors (link). 20. Why do the conditions of approval include a street tree? The Planning Department typically requests a street tree to be provided by the wireless carrier for each facility mounted on a pole within the public right-of-way; in order to screen the equipment. In the event a tree cannot be planted due to conflicts such as existing trees, driveways or utility infrastructure (link to location requirements), the wireless carrier would be required to pay an in-lieu fee to be used by the SF Bureau of Urban Forestry. 21. Are wireless facilities on poles banned in Europe or other California cities, including Berkeley? No. Wireless systems can be found on poles and buildings in Europe, and on poles in other California cities, including Berkeley. Berkeley recently passed an ordinance to require that when people purchase cell phones that they are made aware that the mobile device itself generates radio-frequency (RF) emissions, and provide relevant information (link). The ordinance is currently subject to legal challenge. 22. Do Personal Wireless Services Facilities on wooden poles also provide public Wi-Fi? No. The term Personal Wireless Services Facility is the term used in Federal law. The City does provide public Wi-Fi in many locations, typically using smaller antennas, known as Access Points. City public Wi-Fi (network name: #SFWiFi) can be found on Market Street (Castro Street to Embarcadero), in many City buildings, and in over 30 City parks (link). For more information on wireless facilities visit Updated December 2015 L-5 5

191 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles Common Terms: DAS Acronym for a Distributed Antenna System (also referred to as odas, with the o standing for outdoor installations). A network of antennas and equipment enclosures usually attached to poles in in the public right-of-way. Macro Wireless Telecommunication Services (WTS) Facility - Typically three to sixteen panel antennas mounted on the roof of a building, along with multiple equipment cabinets. Permits reviewed by the Planning Department, Fire Department, DPH, and Department of Building Inspection (DBI). Also subject to the City s Wireless Guidelines, and Planning Code. Macro WTS facilities typically require Planning Commission approval in most residential, neighborhood commercial, and mixed-use zoning districts. Micro Wireless Telecommunications Services (WTS) Facility - Typically one or two antennas mounted on the roof of a building. Permits reviewed by the Planning Department, Fire Department, DPH, and Department of Building Inspection (DBI); subject to the City s Wireless Guidelines, Planning Code, and review by the Zoning Administrator. Example link. Personal Wireless Services Facility Permit Permit for wireless facilities mounted on (typically wood or steel) poles in the public right-of-way. Permits administered by the Department of Public Works and subject to Article 25 of the Public Works Code. Public Right of Way (PROW) Typically streets and sidewalks, where light and utility poles are placed. Small Cells Similar to DAS, though a different communications network architecture. Please note, that some of the square boxes mounted on wood poles in San Francisco, similar to the example photo to the right, are used for various purposes. Wireless carriers sometimes use these cabinets to hold batteries to power some wireless facilities in the event of a power outage. However, many of these boxes are used by wired telephone, internet, and/or cable TV providers such as Comcast, Sonic, or Wave. The boxes are used to splice cables, or to boost power to communication wires and increase signal quality. These boxes do not create radio-frequency emissions, and generally do not generate noise. Disconnect Switch Electric Meter Updated December 2015 L-6 6

192 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles Sonic Internet Service Provider installed fiber-optic cable splice box Pole Top Example Existing Personal Wireless Facility mounted on a wooden streetlight pole in the Richmond neighborhood. The antenna is found at the top of the pole. An electric meter and equipment enclosure (computers) are near the bottom of the pole. The computer cabinets sometimes feature cooling fans, but do not emit radiofrequency emissions; which are created by the antenna on top of the pole. Updated December 2015 L-7 7

193 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles Side Arm Examples Existing Personal Wireless Services Facilities mounted on wooden streetlight poles in the Inner Richmond and Pacific Heights neighborhoods. The antenna is found on a side arm extension below the streetlight (above), or below the communications zone (lower wires in photo below). An electric meter and equipment enclosure (computers) are near the bottom of the pole. Updated December 2015 L-8 8

194 Frequently Asked Questions about Wireless Facilities on Wood Streetlight and Wood Utility Poles Side Arm Example Existing Personal Wireless Facility mounted on a wooden streetlight pole in the Sunset neighborhood. The two (2) panel antennas are on a side arm. An electric meter and equipment enclosure (computers) are near the bottom of the pole. This type of design is considered one that significantly detracts from streetscapes; and new proposals such as this would not typically be approved. Utility Pole Diagram Link to a report by the California Public Utilities Commission (CPUC): A Brief Introduction to Utility Poles Updated December 2015 L-9 9