Berkeley Municipal Code Ch. 23.332 Wireless Communication Facilities

A. Purpose. The purpose of this chapter is to:

1. Provide a uniform and comprehensive set of standards for the development, siting, installation, and operation of wireless telecommunications antennas and related facilities ("wireless telecommunications facilities") for personal wireless services;

2. Foster an aesthetically pleasing urban environment, prevent visual blight, protect and preserve public safety and general welfare, and maintain the character of residential areas, including those adjacent to commercial areas and neighborhood commercial areas, consistent with the General Plan and adopted area plans and in compliance with applicable state and federal legislation; and

3. Prevent the location of wireless telecommunications facilities in Residential Districts unless:

(a) The City is required to permit them in such locations to avoid violating the Telecommunications Act of 1996.

(b) The wireless telecommunications facilities are designed to interfere as little as possible with the character of the neighborhood.

4. Establish and maintain telecommunications facilities that are components of a wireless telecommunications infrastructure designed to enhance the City’s emergency response network and not interfere with such emergency systems in violation of applicable federal or state regulations.

5. Establish a process for obtaining necessary permits for wireless telecommunication facilities that provides greater certainty to both applicants and interested members of the public while ensuring compliance with all applicable zoning requirements.

6. Provide opportunities for further reduction in potential aesthetic or land use impacts of wireless telecommunications facilities as changes in technology occur.

7. Support the use of personal wireless services to enhance personal and public health and safety as well as the public welfare of Berkeley.

B. Applicability. The regulations in this chapter apply to all wireless telecommunications facilities for personal wireless services on property other than the public right-of-way in Berkeley. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Terms Defined. Terms used in this chapter are defined as follows:

1. Antenna. Any system of wires, poles, rods, panels, whips, cylinders, reflecting discs, or similar devices used for transmitting or receiving electromagnetic waves when such system is either external to or attached to the exterior of a structure, or is portable or movable. "Antenna" includes devices having active elements extending in any direction, and directional beam-type arrays having elements carried by and disposed from a generally horizontal boom that may be mounted upon and rotated through a vertical mast or tower interconnecting the boom and antenna support, all of which elements are deemed to be a part of the antenna.

2. Antenna--Facade Mounted (also known as Building Mounted). Any antenna, directly attached or affixed to the elevation of a building, tank, tower, or other structure.

3. Antenna--Ground Mounted. Any antenna with its base, whether consisting of single or multiple posts, placed directly on the ground or a single mast less than 15 feet tall and 6 inches in diameter.

4. Antenna--Parabolic (also known as Satellite Dish Antenna). Any device incorporating a reflective surface that is solid, open mesh, or bar configured that is shallow dish, cone, horn, bowl or cornucopia shaped and is used to transmit or receive electromagnetic or radio frequency communication/signals in a specific directional pattern.

5. Approved Engineer. Radio frequency engineer or licensed electrical engineer specializing in EMF or RFR studies approved by City of Berkeley staff to conduct analysis required pursuant to this chapter.

6. Co-Location. Location of any telecommunication facility owned or operated by a different telecommunication service provider on the same tower, building, or property.

7. Personal Wireless Services. Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services as defined in the Telecommunications Act of 1996.

8. Readily Visible. A wireless telecommunications facility is readily visible if it can be seen from street level or from the main living area of a legal residence in a residential district or from a public park by a person with normal vision, and distinguished as an antenna or other component of a wireless telecommunication facility, due to the fact that it stands out as a prominent feature of the landscape, protrudes above or out from the building or structure ridgeline, or is otherwise not sufficiently camouflaged or designed to be compatible with the appurtenant architecture or building materials. For purposes of this definition, "main living area" means the living and dining and similar areas of a dwelling, but not bedrooms, bathrooms or similar areas.

9. Stealth Facility. Any wireless telecommunications facility that is not readily visible because it has been designed to blend into the surrounding environment and is visually unobtrusive. Examples may include architecturally screened roof-mounted antennas, building-mounted antennas that are painted and treated as architectural element to blend with the existing building, monopoles that are disguised as flag poles or public art, or camouflaged using existing vegetation. A pole or tower with antennas that are flush with or do not protrude above or out from the pole or antenna is not considered to be a stealth facility unless the pole or tower is an existing pole or tower, existing utility pole or tower, or existing light standard or street light, or replacement thereof.

10. Structure Ridgeline. The line along the top of an existing roof or top of a structure, including existing parapets, penthouses, or mechanical equipment screens.

11. Telecommunications. The transmission, between or among points specified by the user, of information of the user’s choosing, without change in the content of the information as sent and received as defined in the Telecommunications Act of 1996.

12. Telecommunications Equipment. Equipment, other than customer premises equipment, used by a Telecommunications Carrier to provide Telecommunications Services, and includes software integral to such equipment (including upgrades) that is not located, in whole or in part, in, above, or below Streets, Public Rights-of-Way or other Public Property.

13. Telecommunications Service. The offering of telecommunications for a fee directly or indirectly to any Person as defined in the Telecommunications Act of 1996.

14. Telecommunications Tower. Any mast, pole, monopole, lattice tower, or other structure designed and primarily used to support antennas. A ground or building mounted mast greater than 15 feet tall and 6 inches in diameter supporting one or more antennas, dishes, arrays, etc. shall be considered a telecommunications tower.

15. Wireless Telecommunications Facilities. Personal wireless service facilities as defined in the Telecommunications Act of 1996, including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated equipment cabinets and/or buildings; and all other accessory development used for the provision of personal wireless services. These facilities do not include radio towers, television towers, and government-operated public safety networks.

B. Terms Not Defined. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. In addition to any other requirements imposed by this chapter, all wireless telecommunications facilities on property other than the public right-of-way in Berkeley shall be consistent with the following:

1. The General Plan, adopted area plans, and all other applicable provisions of the Zoning Ordinance.

2. Applicable regulations and standards of any other governmental agency with jurisdiction over the installation or operation of wireless telecommunications facilities including, but not limited to, the Federal Communications Commission, the Federal Aviation Administration, and the California Public Utilities Commission.

3. Any applicable discretionary permit affecting the subject property, except to the extent the Zoning Officer or Zoning Adjustments Board (ZAB) may modify such requirements. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Section Purpose. This section establishes limited additional application submittal requirements for wireless telecommunications facilities. The purpose of these requirements is to ensure that the purposes of this chapter are implemented to the extent permitted by the Telecommunications Act of 1996.

B. Application Requirements. In addition to meeting the standard application submittal requirements for permits shown in Chapter 23.404 (Common Permit Requirements), wireless telecommunication facility applications required this chapter shall include the following information:

1. Coverage Map and General Information.

(a) A narrative description and map showing the coverage area of the provider’s existing facilities that serve customers in Berkeley and the specific site that is the subject of the application.

(b) A statement of the telecommunications objectives sought for the proposed location, whether the proposed facility is necessary to prevent or fill a significant gap or capacity shortfall in the applicant’s service area, whether it is the least intrusive means of doing so, and whether there are any alternative sites that would have fewer aesthetic impacts while providing comparable service.

(c) An AUP application need not include information as to whether the proposed facility is necessary to prevent or fill a significant gap or capacity shortfall in the applicant’s service area.

2. Technical Information.

(a) Copies of or a sworn statement by an authorized representative that the applicant holds all applicable licenses or other approvals to construct the proposed facility required by the Federal Communications Commission (FCC), the California Public Utilities Commission (PUC), and any other agency of the Federal or State government with authority to regulate telecommunications facilities.

(b) Documentation of or a sworn statement by an authorized representative that the applicant is in compliance with all conditions imposed in conjunction with such licenses or approvals, a description of the number, type, power rating, frequency range, and dimensions of antennas, equipment cabinets, and related wireless telecommunications facilities proposed to be installed, and engineering calculations demonstrating that the proposed facility will comply with all applicable FCC requirements and standards.

3. Visibility.

(a) A site plan, plans, and elevations drawn to scale.

i. Plans shall include microcell, facade- or roof-mounted antennas, and all related equipment.

ii. Elevations shall include all structures on which facilities are proposed to be located.

(b) A description of the proposed approach for screening or camouflaging all facilities from public view including plans for installation and maintenance of landscaping, sample exterior materials, and colors, and an explanation of the measures by which the proposed facility will be camouflaged or made not readily visible.

(c) Where any part of the proposed facility would be readily visible, the application shall include an explanation as to why it cannot be screened from view.

(d) A visual impact analysis including scaled elevation diagrams within the context of the building, before and after photo simulations, and a map depicting where the photos were taken.

(e) The Zoning Officer may require the submission of photo overlays, scaled models, renderings, or mockups to document the effectiveness of techniques proposed to minimize visibility.

(f) If a ground-mounted or freestanding tower is proposed, the application must include an explanation as to why other facility types are not feasible.

4. Peer Review.

(a) The application shall include sufficient information for an approved radio frequency engineer or licensed electrical engineer specializing in EMF or RFR studies ("approved engineer") retained by the City to peer review the information provided in response to Sections 23.332.040.B.2 and 3.

(b) The application shall include an agreement to pay the reasonable actual cost and a reasonable administrative fee for hiring an approved engineer to provide peer review.

(c) Any proprietary information disclosed to the City or its engineer in confidence shall not be a public record and shall remain confidential and not be disclosed to any third party without the express consent of the applicant.

(d) The City and/or its engineer shall return all proprietary information to the applicant and shall not retain any copies of such information once its decision is final.

5. Monitoring. An agreement to pay a reasonable one-time or annual fee for independent monitoring as required by this chapter.

6. Statement of Financial Assurances. A statement that before obtaining a building permit to erect or install the proposed facility, the applicant shall either secure a bond or provide financial assurances, in a form acceptable to the City Manager, for the removal of the facility if that its use is abandoned or the approval is otherwise terminated.

7. Noise. The Zoning Officer may require information concerning noise that might be generated by equipment associated with a wireless telecommunication facility, such as air conditioning equipment, if the physical circumstances of the proposed facility suggest that such noise may be detrimental. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Visibility. A wireless communications facility may not be sited on or above a ridgeline or at any other location readily visible from a public park, unless ZAB makes the applicable findings required in Section 23.332.110.E (Findings).

B. Distance Between Freestanding Facilities. A new freestanding facility, including towers, lattice towers, and monopoles, may not be located within 1,000 feet of another freestanding facility, unless appropriate stealth techniques have been used to minimize the visual impact of the facility to the extent feasible, and mounting on a building or co-location on an existing pole or tower is not feasible. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Measurement.

1. The height of a telecommunications tower is measured from existing grade below the center of the base of the tower to either:

(a) The top of the tower; or

(b) The tip of the highest antenna or piece of attached equipment if taller than the tower.

2. The height of building-mounted antennas includes the height of that portion of the building on which the antenna is mounted.

3. In the case of "crank-up" or similar towers whose height is adjustable, the height of the tower is the maximum height to which it is capable of being raised.

B. Conformance with District Requirements.

1. No antenna telecommunications tower or facade-mounted antenna shall exceed or project above the height limits specified for the district in which the antenna is located.

2. Roof-mounted antennas affixed to an existing or proposed tower or pole shall not extend or project more than 15 feet above the height limit of the district. (Ord. 7787-NS § 2 (Exh. A), 2021)

In addition to all other requirements set forth in this chapter, all wireless telecommunication facilities shall meet the design requirements in this section.

A. Order of Preference of Facility Type. Based on potential aesthetic impact, the order of preference for facility type is as follows (ordered from most preferred to least preferred): microcell, facade-mounted, roof-mounted, ground-mounted, and freestanding tower.

B. Visibility.

1. All facilities shall be designed and located to minimize their visibility to the greatest extent feasible, considering technological requirements, by placement, screening, and camouflage.

2. The applicant shall use the smallest and least visible antennas feasible to accomplish the owner/operator’s coverage or capacity objectives.

3. A wireless telecommunications facility that would be readily visible from the public right-of-way or from the habitable living areas of residential units within 100 feet of the facility shall incorporate appropriate techniques to camouflage or disguise the facility, and/or blend it into the surrounding environment, to the greatest extent feasible.

4. Facilities shall be compatible in scale and integrated architecturally with the design of surrounding buildings or the natural setting.

C. Location.

1. View Corridor Impacts. No readily visible antenna shall be placed at a location where it would impair a significant or sensitive view corridor except as provided for in Subsection (3) below.

2. Facilities in Setbacks and Between Buildings and Rights-of-Way. If telecommunications antenna or ancillary support equipment is located within any required setback or between the face of a building and a public right-of-way, permits are required as follows:

(a) An AUP is required for microcell facilities and facilities that are completely subterranean.

(b) A Use Permit is required for all other facilities.

3. Roof- and Ground-Mounted Antennas.

(a) Roof-mounted antennas shall be located in an area of the roof where the visual impact is minimized.

(b) Roof-mounted and ground-mounted antennas shall not be placed in direct line of sight of significant or sensitive view corridors or where they adversely affect scenic vistas unless the Zoning Officer or ZAB finds that the facility incorporates appropriate, creative stealth techniques to camouflage, disguise, and/or blend into the surrounding environment to the extent feasible.

(c) Roof mounted antennas shall be designed and sited to minimize their visibility and shall be no taller than necessary to meet the operator’s service requirements.

(d) Where roof-mounted antennas are readily visible, confirmation of necessary height for service requirements, at the Zoning Officer’s discretion, shall be based on independent analysis by an approved engineer retained by the City.

4. Satellite Dish or Parabolic Antennas.

(a) Satellite dish or parabolic antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function.

(b) When screened from pedestrian-level view from the public right-of-way and not readily visible from any property that contains a legally established residential use, satellite dish or parabolic antennas may be located in any required setback area subject to the approval of a Use Permit.

(c) No satellite dish or parabolic antenna may exceed 39 inches in diameter unless the Zoning Officer or ZAB finds that a smaller antenna cannot feasibly accomplish the provider’s technical objectives and that the facility will not be readily visible. The Zoning Officer may require that this determination be based on independent technical analysis by an approved engineer.

5. Monopoles and Lattice Towers. All monopoles and lattice towers shall be designed to be the minimum functional height and width required to support the proposed antenna installation unless a higher monopole or lattice tower will facilitate co-location or other objectives of this chapter.

D. Colors and Materials.

1. Colors and materials for facilities shall be chosen to minimize visibility.

2. All visible exterior surfaces shall be constructed of non-reflective materials.

3. Facilities shall be painted or textured using colors to match or blend with the primary background.

E. Lighting.

1. Facility lighting shall be designed to meet but not exceed minimum requirements for security, safety, or FAA regulations, and in all instances shall be designed to avoid glare and minimize illumination on adjacent properties.

2. Lightning arresters and beacon lights shall not be included in the design of facilities unless required by the FAA.

3. Lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers, and monopoles.

F. Advertising. No advertising shall be placed on telecommunications antennas or other equipment.

G. Facility Design.

1. All facilities shall be designed to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions that would result in hazardous conditions, visual blight, or attractive nuisances.

2. The Zoning Officer or ZAB may require the provision of warning signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, antenna facilities have the potential to become an attractive nuisance.

3. The design of the fencing and other access control devices is subject to Design Review.

H. Landscaping.

1. Where appropriate and directly related to the applicant’s placement, construction, or modification of wireless telecommunications facilities, the applicant shall maintain and enhance existing landscaping on the site, including trees, foliage and shrubs, when used for screening unless appropriate replacement landscaping is approved through the Design Review process.

2. Additional landscaping shall be planted as needed to minimize the visual impact of the facility and, when feasible, to block the line of sight between facilities and adjacent residential uses and properties in a residential district.

3. The appropriate minimum size of new trees and shrubs shall be approved through the Design Review process.

I. Projection of Equipment. Facade-mounted equipment, not including any required screening, shall not project more than 18 inches from the face of the building or other support structure unless specifically authorized by the Zoning Officer or ZAB.

J. Ancillary Support Equipment.

1. In order of preference, ancillary support equipment for facilities shall be located either within a building or structure, on a screened roof top area or structure, or in a rear yard if not readily visible from surrounding properties and the public right-of-way, unless the Zoning Officer or ZAB finds that another location is preferable under the circumstances of the application.

2. Above ground and partially buried ancillary equipment, including support pads, cabinets, shelters, and buildings, shall be located where they will be the least visible from surrounding properties and the public right-of-way. Such equipment shall be designed to be architecturally compatible with surrounding structures and/or screened using appropriate techniques to camouflage, disguise, and/or blend into the environment including landscaping, color, and other techniques to minimize their visual impact.

3. If the Zoning Officer determines that an equipment cabinet is not or cannot be adequately screened from surrounding properties or from public view or architecturally treated to blend in with the environment, the equipment cabinet shall be placed underground or inside the existing building where the antenna is located unless the Zoning Officer or ZAB finds that such placement is not feasible or consistent with the objectives of this chapter and other applicable requirements.

K. Co-Located Antennas.

1. When antennas are co-located, the City may limit the number of antennas with related equipment and providers located on a site and adjacent sites to prevent negative visual impacts associated with multiple facilities.

2. Architectural and other camouflaging treatment shall be coordinated between all users on a site.

L. Parking. Proposed facilities shall not reduce the number of available parking spaces below the amount required by the Zoning Ordinance.

M. Effect of Modification. At the time of modification or upgrade of facilities, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual and noise impacts as feasible. (Ord. 7787-NS § 2 (Exh. A), 2021)

All wireless telecommunication facilities shall at all times comply with the following operation and maintenance standards. Failure to comply shall be considered a violation of conditions of approval subject to the enforcement provisions in this chapter.

A. Emergency Sign Required.

1. Each owner or operator of a wireless telecommunications facility shall provide signage identifying the name and phone number of a party to contact in event of an emergency.

2. The design, materials, colors, and location of signs is subject to Design Review.

3. Contact information must be kept current.

B. Maintenance and Repair.

1. Wireless telecommunications facilities and related equipment shall be maintained in good repair, free from trash, debris, litter, graffiti, and other forms of vandalism.

2. Damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight.

3. Graffiti shall be removed from any facility or equipment as soon as practicable, and in no instance more than 48 hours from the time of notification by the City.

4. Vehicle and personnel access to sites for maintenance and repairs shall not be from residential streets or adjacent residential properties to the maximum extent feasible.

C. Landscaping.

1. The owner or operator of a wireless telecommunications facility shall be responsible for maintaining landscaping in accordance with the approved landscape plan and for replacing any damaged or dead trees, foliage, or other landscaping elements shown on the approved plan.

2. Amendments or modifications to the landscape plan must be submitted to the Zoning Officer for approval.

D. Operation Standards.

1. Each wireless telecommunications facility shall be operated in a manner that will minimize noise impacts to surrounding residents and persons using nearby parks, trails, and similar recreation areas.

2. Except for emergency repairs, testing and maintenance activities that will be audible beyond the property line shall only occur between the hours of 8:00 a.m. and 7:00 p.m. on Monday through Friday, excluding holidays.

3. All air conditioning units and any other equipment that may emit noise audible from beyond the property line shall be enclosed or equipped with noise attenuation devices to the extent necessary to ensure compliance with applicable noise limitations under Chapter 13.40 (Community Noise).

4. Backup generators shall only be operated during periods of power outages or for testing.

5. At no time shall equipment noise from any source exceed the standards shown in Chapter 13.40 (Community Noise).

E. Facilities Providing Service to the Government or General Public. All wireless telecommunications facilities providing service to the government or the general public shall be designed to meet the following requirements:

1. The exterior walls and roof covering of all above ground equipment shelters and cabinets shall be constructed of materials rated as nonflammable.

2. Openings in all above ground equipment shelters and cabinets shall be protected against penetration by fire and windblown embers to the greatest extent feasible.

3. Material used as supports for antennas shall be fire resistant, termite proof, and comply with all applicable regulations.

4. Telecommunications antenna towers shall be designed to withstand forces expected during earthquakes to the extent feasible.

(a) Building-mounted facilities shall be anchored so that an earthquake does not dislodge them or tip them over.

(b) All equipment mounting racks and attached equipment shall be anchored so that an earthquake would not tip them over, throw equipment off their shelves, or otherwise damage equipment.

(c) All connections between various components of the wireless telecommunications facility and necessary power and telephone lines shall, to the greatest extent feasible, be protected against damage by fire, flooding, and earthquake.

5. Reasonable measures shall be taken to keep wireless telecommunication facilities in operation in the event of a natural disaster. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Map and Inventory. The Planning and Development Department shall maintain a map and inventory of all existing and proposed wireless telecommunication sites, which shall be available to members of the public and other interested parties for inspection.

B. Inventory Information. The inventory shall, at a minimum, include the following information:

1. Address of site.

2. Number, type, power rating, and frequency range of all antennas at the site.

3. Name of telecommunications carrier owning, operating, or leasing each antenna at the site.

4. Date of most recent certification. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. General.

1. No wireless telecommunications facility or combination of facilities shall at any time produce power densities that exceed the FCC’s limits for electric and magnetic field strength and power density for transmitters.

2. To ensure continuing compliance with all applicable emission standards, all wireless telecommunications facilities shall submit reports as required by this section.

3. The City may require, at the operator’s expense, independent verification of the results of any analysis.

4. If an operator of a telecommunications facility fails to supply the required reports or fails to correct a violation of the FCC standard following notification, the Use Permit or AUP is subject to modification or revocation by the ZAB following a public hearing.

B. All Facilities.

1. Within 45 days of initial operation or modification of a telecommunications facility, the operator of each telecommunications antenna shall submit to the Zoning Officer written certification by a licensed professional engineer that the facility’s radio frequency emissions are in compliance with the approved application and any required conditions.

(a) The engineer shall measure the radio frequency radiation of the approved facility, including the cumulative impact from other nearby facilities, and determine if it meets the FCC requirements.

(b) A report of these measurements and the engineer’s findings with respect to compliance with the FCC’s Maximum Permissible Exposure (MPE) limits shall be submitted to the Zoning Officer.

(c) If the report shows that the facility does not comply with applicable FCC requirements, the owner or operator shall cease operation of the facility until the facility complies with, or has been modified to comply with, this standard.

(d) Proof of compliance shall be a certification provided by the engineer who prepared the original report.

(e) The City may require, at the applicant’s expense, independent verification of the results of the analysis.

2. Before January 31 of every year, an authorized representative for each wireless carrier providing service in the City shall provide written certification to the City that each facility is being operated in accordance with the approved local and federal permits and shall provide the current contact information.

3. Once every two years, at the operator’s expense, the City may conduct or retain an approved engineer to conduct an unannounced spot check of the facility’s compliance with applicable FCC radio frequency standards.

4. If there is a change in the FCC’s MPE limits for electric and magnetic field strength and power density for transmitters, the operator of each wireless telecommunications facility shall submit to the Zoning Officer written certification by a licensed professional engineer of compliance with applicable FCC radio frequency standards within 90 days of any change in applicable FCC radio frequency standards or of any modification of the facility requiring a new submission to the FCC to determine compliance with emission standards.

5. If calculated levels exceed 50 percent of the FCC’s MPE limits, the operator of the facility shall hire an approved engineer to measure the actual exposure levels.

6. If calculated levels are not in compliance with the FCC’s MPE limit, the operator shall cease operation of the facility until the facility is brought into compliance with the FCC’s standards and all other applicable requirements.

7. A report of these calculations, required measurements, if any, and the engineer’s findings with respect to compliance with the current MPE limits shall be submitted to the Zoning Officer.

8. If the Zoning Officer at any time finds that there is good cause to believe that a telecommunications antenna does not comply with applicable FCC radio frequency standards, the Zoning Officer may require the operator to submit written certification that the facility is in compliance with such FCC standards.

C. Facilities Approved Before 2002.

1. The owner or operator of a wireless telecommunications facility that was approved by the City before January 17, 2002, shall submit to the Zoning Officer, within six months from the date of notification, written certification by an engineer that the facility’s radio frequency emissions are in compliance with the approved application and any required conditions.

2. The engineer shall measure the radio frequency radiation of the approved facility, including cumulative impact from other nearby facilities, and determine if it meets the FCC requirements.

3. If the report shows that the facility does not comply with applicable FCC requirements, the owner or operator shall cease operation of the facility until the facility is brought into compliance.

4. To ensure the objectivity of the analysis, the City may require, at the applicant’s expense, independent verification of the results of the analysis.

D. Nonconformities.

1. Any facility that was approved by the City before January 17, 2002, and which does not comply with this chapter on the date of its adoption shall be considered a lawful nonconforming use; provided, that the owner or operator submits the information required in 23.332.100.C (Facilities Approved Before 2002).

2. Roof-mounted or facade-mounted antennas proposed on an existing building, tower, or pole that is legal nonconforming in terms of height shall not extend or project more than 15 feet above the existing height of the building or structure.

3. A lawful nonconforming personal wireless service facility is subject to the requirements of 23.324 (Nonconforming Uses, Structures, and Buildings) except to the extent that they are modified as allowed by this chapter.

E. Violations.

1. Failure to submit the information required in this section is considered a violation of the Zoning Ordinance.

2. Any facility found in violation may be ordered to terminate operations by the ZAB following a duly noticed public hearing. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Permit Required.

1. All wireless telecommunications facilities in any district that require a Use Permit or an AUP are subject to the permit findings in this section and Chapter 23.406 (Specific Permit Requirements).

2. Required findings in Chapter 23.406--Specific Permit Requirements shall not be based on aesthetic impacts if the proposed facility would not be readily visible, or on any other matter that the City is prohibited from considering by the Telecommunications Act of 1996.

B. Modifications. The Zoning Officer may approve minor modifications and aesthetic upgrades that do not increase the size or visibility of any legally established wireless telecommunication facilities without notice or hearing, subject to compliance with all existing conditions of approval.

C. Administrative Use Permit. The following wireless telecommunications facilities require an AUP:

1. Microcell facilities in any district.

2. Modifications to existing sites in Non-Residential Districts.

3. Additions to existing sites in Non-Residential Districts when the site is not adjacent to a Residential District.

4. All new or modified wireless communication facilities in Manufacturing Districts.

D. Use Permit. All new or modified wireless telecommunications facilities not listed in Subsection C (Administrative Use Permit) above require a Use Permit except when otherwise required by Section Chapter 23.404.070--Permit Modifications or this chapter.

E. Findings. The ZAB or Zoning Officer may approve a Use Permit or AUP under this chapter only if it makes all of the following findings:

1. The proposed project is consistent with the general requirements of this chapter and any specific requirements applicable to the proposed facility.

2. The proposed antenna or related facility, operating alone and in conjunction with other telecommunications facilities, will comply with all applicable state and federal standards and requirements.

3. One of the following is true:

(a) The proposed facility is not readily visible.

(b) It is infeasible to incorporate additional measures that would make the facility not readily visible.

4. Except for microcell facilities, the facility is necessary to prevent or fill a significant gap in coverage or capacity shortfall in the applicant’s service area and is the least intrusive means of doing so.

5. The wireless carrier complies with Paragraphs (1) and (2) of Subsection 23.332.090.B (All Facilities). If a wireless carrier has not complied with those sections, the wireless carrier may become compliant by providing current contact information and certification statements for any sites which are not current.

F. Basis for Findings. All findings must be based on substantial information in the record such as, where required, technical analysis by an approved radio frequency engineer, calculations by a state-licensed structural engineer, or other evidence. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. General. Within 30 days of cessation of operations of any wireless telecommunications facility approved pursuant to this chapter, the operator shall notify the Zoning Officer in writing.

B. Lapse of Permit. The wireless telecommunications facility permit shall be deemed lapsed and of no further effect six months thereafter unless one of the following is true.

1. The Zoning Officer has determined that the same operator resumed operation within six months of the notice.

2. The City has received an application to transfer the permit to another operator.

C. Effect of Lapse.

1. No later than 30 days after a permit has lapsed, the operator shall remove all wireless telecommunication facilities from the site.

2. If the operator fails to do so, the property owner shall be responsible for removal, and may use any bond or other assurances provided by the operator pursuant to the requirements of Section 23.332.050--Location Requirements to do so.

3. If such facilities are not removed, the site shall be deemed to be a nuisance pursuant to Chapter 23.414--Nuisance Abatement and the City may call the bond to pay for removal.

D. Failure to Inform. Failure to inform the Zoning Officer of cessation of operations of any existing facility constitutes a violation of the Zoning Ordinance and shall be grounds for any or all of the following:

1. Prosecution.

2. Revocation or modification of the permit.

3. Calling of any bond or other assurance secured by the operator pursuant to the requirements of Section 23.332.050--Location Requirements.

4. Removal of the facilities.

E. Transfer of Ownership.

1. Any FCC-licensed telecommunications carrier that is buying, leasing, or considering a transfer of ownership of an already approved facility, shall provide written notification to the Zoning Officer and request transfer of the existing Use Permit.

2. The Zoning Officer may require submission of any supporting materials or documentation necessary to determine that the proposed use is in compliance with the existing Use Permit and all of its conditions including, but not limited to, statements, photographs, plans, drawings, models, and analysis by a state-licensed radio frequency engineer demonstrating compliance with all applicable regulations and standards of the FCC and the California PUC.

3. If the Zoning Officer determines that the proposed operation is not consistent with the existing Use Permit, they shall notify the applicant who may revise the application or apply for modification to the Use Permit pursuant to the requirements of Chapter 23.404--Common Permit Requirements. (Ord. 7787-NS § 2 (Exh. A), 2021)