Dana Point Municipal Code Ch. 5.42 Small Wireless Facility and Eligible Facility Request Regulations

This Chapter establishes a small wireless facility ("SWF") permit, and sets forth definitions, permitting requirements and application processes for Small Wireless Facilities within the public right-of-way ("PROW") in the City and as otherwise required by law, including reasonable, uniform and objective aesthetic standards. This Chapter also establishes an eligible facilities request permit and sets forth definitions, permitting requirements, and the application process for eligible facilities requests. This Chapter addresses batch processing standards for substantially similar broadband projects.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

The following definitions are applicable to this Chapter:

"Accessory equipment"

means any equipment associated with the installation of a small wireless facility or modifications that qualify as an eligible facilities request, including, but not limited to: cabling, generators, fans, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, utilities, fiber-line, surface location markers, covering furniture or decorative features.

"Antenna"

means that part of a small wireless facility designed to radiate or receive radio frequency signals.

"Applicant"

means the entity applying for the small wireless facility permit that will own and operate said facility, and any entity acting on such entity's behalf.

"Batch small wireless facility application"

means an application for multiple small wireless facilities at multiple locations, or multiple applications for separate facilities at multiple locations submitted to the City at one time.

"Broadband projects"

means both the proposed facility, and support structures and equipment comprised of components such as wireless facilities, fiber optic connections, and other supporting equipment.

"Colocation"

shall mean the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

"Director of Community Development"

means the City's Director of Community Development, or appointed designee.

"Eligible facilities request"

shall have the same definition provided by Federal law via 47 U.S.C. Section 1455(a). For purposes of this subsection, the term "eligible facilities request" means any request for modification of an existing wireless tower or base station that involves: (1) collocation of new transmission equipment; (2) removal of transmission equipment; or (3) replacement of transmission equipment.

"Existing support structure"

means a structure, such as a street light, that is existing prior to the City's receipt of an application for a small wireless facility permit, which will not have to be replaced or substantially modified to support the installation of a small wireless facility. Notwithstanding the foregoing, in-kind replacement structures are considered existing support structures for the purposes of this Chapter.

"Existing wireless tower"

shall mean any structure built for the sole or primary purpose of supporting any commission-licensed or authorized antennas and their associated facilities.

"Facility"

means small wireless facility.

"In-kind replacement support structure"

means a new structure that replaces existing vertical infrastructure in the PROW that is constructed to support the other parts of the small wireless facility, and is identical to the existing vertical infrastructure it replaces with respect to size, height, diameter, style, and exterior materials.

"Modification"

shall mean any addition, removal or replacements of an antenna or any other transmission equipment associated with an existing supporting structure.

"New support structure"

means a structure that is constructed solely to support the other parts of the small wireless facility or accessory equipment.

"Permittee"

for the purposes of this Chapter, shall mean and refer to the entity or person that has been issued a permit under this Chapter and is operating a facility or modification approved under this Chapter, or any entity acting on behalf of such an entity or person. Should the permittee later sell a facility or modification constructed pursuant to a permit issued under this Chapter, the term permittee shall apply to that subsequent owner.

"Replacement support structure"

means a new structure that replaces existing vertical infrastructure in the PROW that is constructed solely to support the other parts of the small wireless facility, except for in-kind replacement structures.

"SCADA"

is an acronym that stands for supervisory control and data acquisition (SCADA), which is a control system architecture comprising computers, networked data communications and graphical user interfaces for high-level process supervisory management, while also comprising other peripheral devices like programmable logic controllers and discrete proportional-integral-derivative controllers to interface with process plant or machinery. All SCADA deployments that meet the definition of a facility to be placed in the City will be considered as small wireless facilities and will require SWF ministerial permits per this Chapter.

"Single application"

means an application for a single small wireless facility at a single location.

"Small wireless facility"

means any equipment that facilitates transmission for any commission-licensed or authorized wireless communication service or other similar service, including, but not limited to, radio receivers, antennas and other relevant equipment associated with and necessary to their operation, including coaxial or fiber optic cable, regular and back and power supplies, support structures and meets each of the following conditions:

(1)

Support Structure.

(A)

Installation on an Existing Support Structure. Where the facility will be installed on an existing support structure, the structure on which the facilities will be mounted:

(i)

Is 50 feet or less in height with the added antennas, or

(ii)

Is no more than 10% taller that other adjacent structures, or

(iii)

Is not extended to a new height more than 50 feet or 10% above its preexisting height, as a result of the collocation of new facility (including the height of the facility); or

(B)

Installation on a New Support Structure. Where the facility will be installed on a new support structure, including a replacement structure, the structure on which the facilities will be mounted:

(i)

Is 50 feet or less in height with the added antennas, or

(ii)

Is no more than 10% taller than other adjacent support structures with the added antennas.

(2)

Each antenna (excluding the associated equipment) is no more than three cubic feet in volume.

(3)

All associated equipment with a small wireless facility is cumulatively no more than 28 cubic feet in volume.

(4)

The facility does not require antenna structure registration under Part 17 of Title 47 of the Code of Federal Regulations as that code is amended from time to time;

(5)

The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards that specified in 47 C.F.R. § 1.1307.

(6)

For the purpose of this Section, "small wireless facility" shall only include the antennas, and the "equipment associated with the facility."

(7)

For the purpose of this Section small wireless facilities will also include all SCADA poles and antennas.

(8)

Exemptions the term "small wireless facility" does not apply to the following:

(A)

Government owned and operated telecommunication facilities.

(B)

Emergency medical care provided owned and operated telecommunications facilities.

(C)

Mobiles services providing public information coverage of news events of a temporary nature.

(D)

Any wireless telecommunications facilities exempted from this Code by Federal or State law.

"Street light"

means a light illuminating a road, mounted on a pole and within the PROW.

"Structure"

means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of services).

"Substantially similar"

nearly identical to another broadband project in terms of equipment and general design, but not in terms of location, as determined by the Director of Community Development in their reasonable discretion and subject to applicable law regulating broadband projects.

"Support structure"

means either an existing support structure, new support structure, or replacement of support structure, which are all considered part of a small wireless facility.

"Zoning Administrator"

means the Director of Community Development who reviews and approves or denies administrative level entitlement permits.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

(a) Prior to the construction or installation of any small wireless facility in the PROW, the applicant shall obtain a small wireless facility permit pursuant to the procedures, requirements, and restrictions of this Chapter, in addition to a review for structural calculations and encroachment permit as defined in Ch. 14.01. An improvement plan and inspection is required for a new support structure or a replacement support structure.

(b) Unless specifically exempt by Federal or State law, all applications for modifications to existing support structures within the PROW that constitute "eligible facilities requests" within the meaning of 47 U.S.C. Section 1455(a) require the approval of an eligible facilities request (or "EFR") permit prior to construction of such eligible facility.

(c) Any wireless communication facility that does not meet the definition of a small wireless facility pursuant to this Chapter being installed in the PROW or an eligible facilities request, shall comply with and acquire the requisite permits in Section 9.07.020, Antennas.

(d) Nothing in this Chapter prohibits the City from requiring a conditional use permit and an antenna use permit pursuant to Section 9.07.020 of this Code for a proposed wireless communication facility outside of the PROW, or as otherwise required by the City's Code.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

(a) The Community Development Director shall be the approval body for all small wireless facility permits and eligible facilities request permits. However, the Director in his or her sole and absolute discretion shall have the authority to refer any application under this Chapter to the Planning Commission for the City of Dana Point. At that point, the Planning Commission shall act in the role of the Community Development Director as outlined in this Chapter.

(b) The decision of the Community Development Director or Planning Commission made pursuant to this Chapter shall be considered a final decision for the purpose of any subsequent judicial review.

(c) The Community Development Director or Planning Commission shall only approve a small wireless facility permit or an eligible facilities request permit if all the necessary findings of this Chapter can be met. Furthermore, the permit(s) shall include a condition that the permittee and project will meet the siting, concealment, and operating standards applicable to those projects on an ongoing basis, these will act as conditions of approval of the facility.

(d) There will not be a notification process or public hearing required for small wireless facility permits or eligible facilities request permits, unless the Community Development Director determines that the application should be placed on an upcoming Zoning Administrator or Planning Commission meeting agenda for review. If an application is referred to the Zoning Administrator or Planning Commission, then a public hearing must be conducted in accordance with the requirements of Dana Point Municipal Code Section 9.61.050.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

(a) Before receiving a small wireless facility permit, the applicant must submit an application in accordance with the requirements of this Section.

(b) Before submitting an application, all applicants are advised and strongly urged, but not required, to participate in a wholly voluntary pre-application meeting with appropriate City staff.

(c) Consistent with Assembly Bill 965, an applicant may submit a "batched" application for up to 25 broadband projects, including for broadband projects which would require a small wireless facility permit. Batched applications will be processed simultaneously and shall be approved in a single permit, or uniformly denied, based on whether the batched applications comply with all requirements in this Chapter applicable to the underlying project type. Batch processing is not permitted for eligible facilities requests. The applicant shall submit separate materials for each broadband project that is a part of the application demonstrating that each broadband project is substantially similar. If any particular broadband project in a batch is not substantially similar to the others in the batch, it may be rejected from the remaining batch and may require separate processing.

(d) All applications for small wireless facility permits shall include the following information:

(1) A completed small wireless facility application. This form may be updated by the Director of Community Development from time to time, at his or her reasonable discretion. At a minimum, the following application materials shall be required:

(A) Detailed plans, including, but not limited to, the following:

(i) Construction Plans. The applicant shall submit true and correct construction drawings, prepared, signed and stamped by a California licensed or registered engineer, that depict all the existing and proposed improvements, equipment and conditions related to the proposed project, which includes, without limitation: any and all poles, posts, pedestals, traffic signals, towers, streets, sidewalks, pedestrian ramps, driveways, curbs, gutters, drains, handholes, manholes, fire hydrants, equipment cabinets, antennas, cables, trees and other landscape features. The construction drawings shall: (a) contain cut sheets that contain the technical specifications for all existing and proposed antennas and accessory equipment, which includes, without limitation, the manufacturer, model number, and physical dimensions; (b) identify all structures within 250 feet from the proposed project site and call out such structures' overall height above ground level; (c) depict the applicant's plan for electric and data backhaul utilities, which shall include the locations for all conduits, cables, wires, handholes, junctions, transformers, meters, disconnect switches, and points of connection; and (d) demonstrate that proposed project will be in full compliance with all applicable health and safety laws, regulations or other rules, which includes, without limitation, all building codes, electric codes, local street standards and specifications, and public utility regulations and orders.

(ii) Site Survey. For any small wireless facility proposed to be located within the PROW, the applicant shall submit a survey prepared, signed, and stamped by a California licensed or registered surveyor. The survey must identify and depict all existing boundaries, encroachments and other structures within 250 feet from the proposed project site, which includes, without limitation all: (a) traffic lanes; (b) all private properties and property lines; (c) above and below-grade utilities and related structures and encroachments; (d) fire hydrants, roadside call boxes and other public safety infrastructure; (e) streetlights, decorative poles, traffic signals and permanent signage; (f) sidewalks, driveways, parkways, curbs, gutters and storm drains; (g) benches, trash cans, mailboxes, kiosks and other street furniture; and (h) existing trees, planters and other landscaping features.

(iii) Photo Simulations. The applicant shall submit site photographs and 360° photo realistic simulations that show the existing location and proposed small wireless facility in context from at least three vantage points within the public streets or other publicly accessible spaces, together with a vicinity map that shows the proposed site location and the photo location for each vantage point. Staff may require additional simulations depending on the proposed location.

(iv) Project Narrative. The applicant shall submit a written statement that explains in plain factual detail whether and why the proposed wireless facility qualifies as a small wireless facility. A complete written narrative analysis will state the applicable standard and all the facts that allow the City to conclude the standard has been met — bare conclusions not factually supported do not constitute a complete written analysis. Where applicable, as part of the written statement the applicant must also include: (a) whether and why the proposed support is a structure as defined by the FCC in 47 C.F.R. Section 1.6002(m); and (b) whether and why the proposed wireless facility meets each required finding for a small wireless facility.

(v) Site Justification Letter(s). The applicant shall submit site justification letter(s) justifying the need or requirement for the proposed location and design of the small wireless facility, and whether or not collocation of additional facilities owned by different carriers is feasible. The letter shall include other sites that were analyzed but not selected, with an explanation as to why the analyzed sites did not meet the objectives (including engineering, coverage and location justification), and why the collocation of the proposed wireless communication facility with others in the area cannot be accomplished.

(vi) Radio Frequency (RF) Exposure Compliance Report. The applicant shall submit an RF exposure compliance report that certifies that the proposed small wireless facility, as well as any collocated wireless facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must be prepared and certified by an RF engineer acceptable to the City. The RF report must include the actual frequency and power levels (in watts 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.

(vii) Mechanical engineering specifications of the facilities specifying maximum noise exposure levels of the facility to be in compliance with the City's exterior noise standards, set forth in Section 11.10.010. The applicant shall submit a noise study for review and approval by the Director of Community Development which demonstrates that the equipment complies with the Noise Ordinance. The study shall include cut-sheets detailing the following information:

a. The ambient noise levels in the immediate areas.

b. The maximum dB levels emitted from the equipment cabinet without sound attenuation measures installed.

c. If the equipment cabinet noise levels can be heard above ambient or are in excess of the City's Noise Ordinance standard, the noise study shall recommend attenuation measures that are in keeping with the wireless facility's surroundings and overall design contact;

d. The maximum dB level emitted from the equipment cabinet with the recommend attenuation measure(s).

(viii) A utility plan showing equipment layout and utility connections.

(ix) Regulatory Authorization. The applicant shall submit evidence of the applicant's regulatory status under Federal and California law to provide the services and construct the SWF proposed in the application.

(x) Site Agreement for City Property. For any small wireless facility proposed to be installed on any structure owned or controlled by the City and located within the public rights-of-way, the applicant must enter into a site agreement prepared on a form prepared by the City and approved by the City attorney that states the terms and conditions for such non-exclusive use by the applicant. No changes shall be permitted to the City's form site agreement except as may be indicated on the form itself. Any unpermitted changes to the City's form site agreement shall be deemed a basis to deem the application incomplete.

(xi) Property Owner Authorization. The applicant must submit a written authorization form from the support structure owner(s), as well as the underlying property owner, that authorizes the applicant to submit and accept a small wireless facility permit in connection with the subject structure, and further indicates that the property owner agrees to be subject to the conditions of approval associated with said permit.

(xii) Maximum Possible Exposure MPE Report. A report specifying the facilities compliance with the FCC's (MPE) levels in inhabited areas within 500 feet of the facility prepared by a qualified electrical engineer licensed by the State of California. Proof of compliance shall be a certification provided by the engineer who prepared the original based upon measurements after the facility is in operation, but prior to City final engineering inspection. The City may require, at the applicant's expense, independent verification of the results of the analysis at any time during operations.

(xiii) Structural Analysis. The applicant shall submit a report prepared and certified by a California licensed or registered engineer that evaluates whether the underlying pole or support structure has the structural integrity to support all the proposed equipment and attachments. At a minimum the analysis must be consistent with all applicable requirements in CPUC General Order 95, the National Electric Safety Code and any safety and construction standards required by law and the utility provider.

(xiv) Environmental Impact Assessment. If applicable, the applicant shall submit an environmental impact assessment on the current form prepared by the City to determine whether the proposed project is categorically exempt under Article 19 of CEQA guidelines, or whether the proposed project will require a negative declaration, mitigated negative declaration or an EIR.

(xv) Encroachment Permit. For all applications within the City ROW, the applicant must also include a completed application for an Encroachment Permit for submittal into City's Public Works and Engineering Department for review and approval.

(B) Payment of all deposits or fees as required for processing of the associated permits as outlined in the City's Fee Schedule, as may be amended from time to time.

(C) A document evidencing the applicant's written consent and agreement to be bound and operate in accordance with the operating conditions found in Section 5.42.120 of this Chapter.

(D) Written acknowledgement that in instances where the City is not a property owner, the applicant and property owner agree in writing to indemnify, defend and hold harmless the City, its designees, employees, and assigns, from any and all liability resulting from the City's approval of the small wireless facility, the operation of the small wireless facility, and/or the City's enforcement of this Chapter as it relates to any small wireless facility owned and/or operated by the applicant.

(2) When submitting a batch small wireless facility application, the applicant shall submit separate materials for each facility that is a part of the application. A separate fee is required for each facility, as applicable.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

An application for an eligible facilities request permit must contain all of the same information required in Section 5.42.050, but also include any additional information necessary to demonstrate that the proposed project meets the definition of an eligible facilities request as defined by Federal law. The Community Development Director is hereby authorized to develop and adopt those forms necessary to streamline the City's consideration of application that constitute an eligible facilities request.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

(a) Prior to issuance of a small wireless facility permit pursuant to this Chapter, the following findings shall be made to the satisfaction of the Director of Community Development:

(1) A complete application has been submitted to the satisfaction of the Community Development Director as required by this Chapter.

(2) The proposed facility meets all the requirements concerning concealment as defined in Section 5.42.090.

(3) The proposed facility meets all the requirements concerning siting as defined in Section 5.42.100.

(4) The applicant has agreed to comply with the operating conditions found in Section 5.42.120.

(5) The proposed facility and applicant satisfies the requirements set forth in this Chapter.

(6) The proposed facility is not detrimental to the public health, safety, or general welfare.

(7) Opportunities for colocation were investigated as a part of the project to the extent technically feasible.

(8) The proposed facility will function in compliance with all applicable Federal, State and local regulations, including (where applicable) regulations of the Federal Communications Commission.

(9) 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 unavailable.

(10) The applicant has paid all necessary City fees and deposits associated with the application, and the proposed facility.

(11) The applicant has satisfied and/or acquired other permits and associated fees to work in the PROW. If other permits are required after approval of a facility permit, the applicant shall agree to acquire and comply with the remaining necessary permits.

(12) All public notices required for the application, if any, have been given.

(13) The facility complies with the City's applicable building, structural, electrical and safety codes and all applicable Americans with Disabilities Act requirements.

(b) Where the Director of Community Development issues a small wireless facility permit, the approval shall be conditioned on a requirement that the applicant/permittee comply with all the standards, conditions and other requirements articulated in this Chapter on an ongoing basis.

(c) If the Director of Community Development or Planning Commission, or on appeal, the appeal authority, cannot make the required findings, the approval authority shall deny the permit with a written explanation as to why any such finding could not be made.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

(a) Prior to issuance of an eligible facilities request permit pursuant to this Chapter, the following findings shall be made to the satisfaction of the Community Development Director:

(1) A complete application has been submitted.

(2) The proposed eligible facilities permit qualifies as an eligible facilities request, as defined by Federal law.

(3) The proposed eligible facilities request permit does not defeat any of the concealment elements of the underlying approval applicable to the existing support structure.

(4) All illegal structures or facilities, or other issues relating to non-compliance with applicable laws and regulations, excluding legal non-conforming uses, have been corrected.

(b) If the Director of Community Development cannot make the required findings, the approval authority shall deny the permit with a written explanation as to why any such finding could not be made.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

The following concealment standards have been developed to ensure that proposed small wireless facilities avoid or remedy unsightly or out-of-character deployments. Unless otherwise noted, these requirements apply to all facilities subject to this Chapter.

(a) The diameter of the facility and support structure, including any concealment elements, shall be a maximum of 36 inches, unless the Director of Community Development, in his or her sole discretion, determines that a larger structure will not result in an unsightly or out of character deployment taking into account the surrounding uses.

(b) All antennas shall be mounted and concealed on the support structure to minimize the aesthetic impact of the antennas, to the satisfaction of the Director of Community Development. There shall be no exposed equipment (conductors, wires, conduit, etc.) or backpack type installations.

(c) Where the proposed facility includes a new support structure (including replacement support structure), all other equipment associated with the antennas shall either be mounted in the same shroud that houses the antennas, within the support structure, or underground and shall be considered part of the "equipment associated with the facility."

(d) Where the facility will be installed on an existing support structure, all equipment associated with the facility shall be located and arranged on the existing support structure so as to replicate the color, size, texture, and shape of the existing support structure, so that the facility is integrated with the surrounding visual background including buildings, landscape and/or uses in the area or those likely to exist in the area, and should prevent the facility from visually dominating the surrounding area. There shall be no exposed wiring, backpacks, or other equipment.

(e) All equipment required to be undergrounded, including any pull boxes or other cabinetry, shall be located entirely underground and flush with existing sidewalk or ground surface. All undergrounded equipment shall be considered a part of the "equipment associated with the facility."

(f) Except as otherwise required by law, all signage colors must be consistent with the color of the structure and shall be located a maximum of two feet below the proposed antenna shroud.

(g) Small wireless facilities shall not include above-ground equipment of any kind that is not fully enclosed within the support structure or shroud. Further, any part of the facility located on the ground must be located below ground-level.

(h) The facility shall be architecturally integrated with support structures and screened from view to the largest extent feasible. The facility shall consist of the smallest, least visually intrusive antennas and other necessary associated equipment available.

(i) No associated equipment shall be ground mounted.

(j) No portion of a facility is permitted to obstruct the view of any traffic sign, way-finding sign, traffic signal, or similar facility, nor be located within the sight triangle.

(k) The fire hydrant port that runs perpendicular to the street center line must remain unobstructed.

(l) The facility must not be designed in such a way that it requires antenna structure registration under Part 17 of Title 47 of the Code of Federal Regulations.

(m) Each facility shall include emergency contact information visible from the sidewalk with the wireless carrier, the frequency band, a single point of contact in the permittee's engineering and maintenance departments (name, phone number, fax number, and email address), and a 24-hour phone number to which interference problems may be reported. All radio frequency warning and notice signage shall at all times be maintained in good condition by the permittee.

(n) Light standard-mounted or traffic control standard-mounted antenna facilities shall be designed to be unobtrusive, in the opinion of the City, and shall locate equipment cables within the light standard or traffic control standard; place related electronic equipment in underground vaults (except for environmental air conditioning units needing above-ground access).

(o) Freestanding antenna facilities shall be architecturally compatible with the surrounding land uses, buildings, structures, landscaping and other improvements by blending with the existing characteristics to the greatest extent possible.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

(a) Freestanding facilities (either located on a new or existing support structure) shall avoid being a visually dominant intrusion into a given view shed by locating the facilities near other vertical elements such as existing structures, walls or trees.

(b) The applicant must make all commercially reasonable efforts to collocate facilities on existing support structures.

(c) The preferred support structure for any small wireless facility is existing street lights, or other qualified existing support structures. The applicant must make all efforts to utilize a street light or other qualified existing support structure. If a new or replacement support structure is required due to technical infeasibility, the applicant must provide the documentation required by this Chapter demonstrating the same to the satisfaction of the Director of Community Development. Further, the applicant must explore and document the infeasibility of a replacement support structure before a facility requiring a new support structure will be approved.

(d) Required Setbacks for New Support Structures, Replacement Support Structures and Equipment and Accessory Structures Associated with a Small Wireless Facility.

(1) All portions of a facility must be set back a minimum of 48 inches from any traffic signal facilities, or less if approved by the City Engineer to adequately preserve the function of such traffic signal facilities.

(2) The setback for all portions of a small wireless facility from any part of an existing tree shall be a minimum of 48 inches unless a qualified arborist can demonstrate to the satisfaction of the Director of Community Development that a lesser setback would not harm the tree.

(3) A minimum of four feet, or lesser amount determined by the City Engineer to provide sufficient pedestrian clearance, from any portion of a facility, free of all obstacles for an unobstructed walkway, must be maintained at all times.

(4) All portions of a facility (including its support structure) must be set back a minimum of seven feet from any fire hydrant, driveway, curb ramp or blue zone parking space or lesser amount determined by the City Engineer to allow adequate clearance.

(5) All new support structures and replacement support structures shall provide the same setbacks as adjacent structures of a similar style. However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, the setback can be modified, provided the facility otherwise complies with setback regulations set forth in this Section and all pertinent laws and regulations, including, but not limited to, the Americans with Disabilities Act.

(6) Any new or replacement support structure shall not be located along the street frontage adjacent to any Pre-K through 12 school or daycare center.

(7) New structures may not be located within 10 feet of any pre-existing support structure exceeding 10 feet in height or any pre-existing small wireless facility, as measured along a horizontal line between the closest points of the subject piece of infrastructure and closest portion of the proposed facility. This setback may be reduced further by both the City Engineer and Director of Community Development on a case-by-case basis when the applicant demonstrates a substantially better design.

(e) To the fullest extent permitted by law, small wireless facilities approved under this Chapter shall only be located within the PROW. Other small wireless facilities (to the extent required to be permitted pursuant to superseding law), shall comply with all applicable requirements of this Chapter as the same may be modified by superseding law.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

All applications for repairs, replacements, or modifications to existing support structures that currently house wireless communications facilities that also constitute an "eligible facilities request" under 47 U.S.C. Section 1455(a) shall be required to comply with the following objective standards:

(a) Each such repaired, replaced, or modified facility shall comply with all conditions of approval applicable to the facility and existing support structure as it existed immediately prior to the proposed repair, replacement, or modification.

(b) Each such repaired, replaced, or modified facility shall demonstrate compliance with the City's applicable building, structural, electrical, and safety codes, or with other laws codifying objective standards reasonably related to health and safety.

(c) Each such repaired, replaced, or modified facility shall comply with the City's Noise Ordinance.

(d) Each such repaired, replaced, or modified facility shall comply with the Federal Communication Commission regulations regarding radio frequency emissions, as they may be amended from time to time.

(e) The approval body may place a condition on any eligible facilities permit that calls for the expiration of the permit, or, in the City's discretion, reconsideration of the permit by the original approval authority at the end of a specified time period (to be no less than 10 years) from the date of the original permit approval. Items to be reviewed may include any matter permitted by State and Federal law, including, but not limited to, conformance with all conditions of approval, availability of new technologies, conformance with the concealment elements imposed on the repaired, replaced, or modified facility, operation of the repaired, replaced, or modified facility in its intended manner, conformance with all applicable radio frequency standards and regulations (as they may be amended from time to time), and compliance with the City's Noise Ordinance.

(1) Compliance with eligible support structures concealment/camouflage elements: Pursuant to 47 U.S.C. Section 1455, applicants requesting an eligible facilities permit pursuant to this Chapter must demonstrate that their proposed modification does not defeat the concealment elements that have been imposed on the underlying eligible support structure. In order to comply with this requirement, the proposed modification must meet the standards laid out below in Section 5.42.120, provided that the eligible support structure is subject to those requirements.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

In addition to the foregoing conditions, which shall also be included as conditions of approval where appropriate, a permit issued under this Chapter shall also be subject to the following conditions, where applicable:

(a) Prior to issuance of any building permits, the permittee shall provide to the Orange County Sheriff Communication bureau a letter identifying the location of the proposed facility, the wireless carrier, the frequency band, a single point of contact in the carrier's engineering and maintenance departments (name, phone number, fax number, and e-mail address), and a 24-hour phone number to which interference problems may be reported. A copy of this letter shall be provided to the Community Development Department.

(b) Permanent power shall not be connected to a facility, nor shall signal transmission or reception occur by way of temporary power, nor shall the electrical meter be released, or permanent power be otherwise provided for unattended site operation until final inspection has been approved.

(c) Any camouflaging and aesthetic conditions imposed on a facility shall be inspected and verified to have been satisfied.

(d) The antennas shall be activated and energized upon preliminary approval of the small wireless facility or an eligible facilities request by the Community Development Director to allow for proof of compliance certification provided by the engineer who prepared the original MPE report based upon measurements after the facility is in operation, but prior to the City's final engineering inspection. The City may require, at the applicant's expense, independent verification of the results of the analysis at any time during operations.

(e) All facilities and related equipment and improvements shall be maintained in good repair. Any damage from any cause shall be repaired as soon as reasonably possible to minimize occurrences of dangerous conditions or visual blight.

(f) Each facility shall be operated and maintained to comply with all conditions of approval. The permittee, when directed by the City, must perform an inspection of the facility and submit a report to the public works director on the condition of the facility to include any identified concerns and corrective action taken. Additionally, as the City performs maintenance on City-owned infrastructure, additional maintenance concerns may be identified. These will be reported to the permittee. The City shall give the permittee 30 days to correct the identified maintenance concerns after which the City reserves the right to take any action it deems necessary, which could include revocation of the permit. The burden is on the permittee to demonstrate that it complies with the requirements herein. Prior to issuance of a permit under this Chapter, the owner of the facility and the property owner shall sign an affidavit attesting to understanding the City's requirement for performance of annual inspections and reporting.

(g) Ongoing maintenance, upkeep and operation of a facility or modification approved pursuant to this Chapter (including its support structure) and surrounding landscaping is required and is the responsibility of the applicant. This includes, but is not limited to:

(1) 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 (water, sewer, storm drains, gas, oil, electrical, etc.) that result from any activities performed in connection with the installation and/or maintenance of a wireless facility in the PROW;

(2) General dirt and grease;

(3) Chipped, faded, peeling, and cracked paint;

(4) Rust and corrosion;

(5) Cracks, dents, and discoloration;

(6) Missing, discolored or damaged artificial foliage or other camouflage;

(7) Graffiti, bills, stickers, advertisements, litter and debris. All graffiti on facilities must be removed at the sole expense of the permittee within 48 hours after notification from the City;

(8) Broken and misshapen structural parts;

(9) Any damage from any cause; and

(10) Any visual blight.

(h) All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in neat, safe and 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 in writing by the Community Development Director.

(i) The owner and/or operator of a facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in the permit. Each operator of a facility approved pursuant to this Chapter shall provide the Community Development 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 days of any change.

(j) Any modification of a facility approved pursuant to this Chapter that does not constitute an eligible facilities request that shall be processed by this Chapter, shall require submittal, review, and approval of a subsequent permit as dictated by the City's Code.

(k) Term of Permits.

(1) A small wireless facility permit issued under this Chapter shall remain effective for a period of 10 years from the day of the City's issuance of the same.

(2) An eligible facilities request permit issued under this Chapter shall remain effective for a period of 10 years from the day of the City's issuance of the same; or for until the permit that authorized the original eligible support structure expires, whichever is shorter.

(3) Unless a permit's term is extended via a subsequent approval by the City, the permittee shall be responsible for removing the facility or modification within 60 days following the expiration of the permit.

(l) The owner or operator of a small wireless facility shall remove, at its sole responsibility and expense, all portions of a facility and restore the existing support structure to its original condition, subject to approval of the Director of Community Development, within 30 days of ceasing operation of any facility or modification approved pursuant to this Chapter.

(m) The owner or operator of any facility or modification approved pursuant to this Chapter shall be required to modify, remove, or relocate its facility, or portion thereof, without cost or expense to the City, within 60 days of the City's notice, if and when made necessary, in the City's discretion, by:

(1) Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities, including, but not limited to, sewers, storm drains, conduits, gas, water, electric, or other utility systems or pipes owned by the City or any other public agency;

(2) Any abandonment of any street, sidewalk, or other public facility;

(3) Any change of grade, alignment or width of any street, sidewalk, or other public facility; or

(4) A determination by the Director of Community Development that the facility has become a risk to public health, safety, welfare, or the public's use of the PROW.

(n) In the case of an emergency or other exigent circumstances, the City may modify, remove, or relocate any facility or modification approved pursuant to this Chapter without prior notice to the permittee provided the permittee is notified within 30 days thereafter.

(o) Applicant agrees to remunerate to the City, and to otherwise repair or rehabilitate any and all landscaping and/or hardscaping that is damaged, removed, or otherwise harmed during the installation, maintenance, or removal of the wireless facility and/or structure upon which the facility is mounted.

(p) The permittee shall pay all charges related to the processing of any permit within 30 days of issuance of the final invoice for such project. Failure to pay all charges shall result in delays in the issuance of required ministerial permits (i.e., building permits, encroachment permits, etc.), or may result in the revocation of the approval of the application.

(q) For all facilities and modifications located within the PROW, the permittee shall obtain an encroachment permit consistent with Chapter 14.01. Maintenance vehicles shall not impact pedestrian, bike or vehicle traffic in any way within the PROW without approval of an encroachment permit.

(r) The applicant or any successor-in-interest shall defend, indemnify and hold harmless the City of Dana Point, it agents, officers, or employees from any claim, action, or proceeding against the City, its agents, officers or employees to attack, set aside, void, or annul an approval or any other action of the City, its advisory agencies, appeal boards, or legislative body concerning the project. Applicant's duty to defend, indemnify, and hold harmless the City shall include paying the City's Attorney fees, costs and expenses incurred concerning the claim, action, or proceeding.

(s) The applicant or any successor-in-interest shall further protect, defend, indemnify and hold harmless the City, its officers, employees, and agents from any and all action claims, actions or proceedings against the City, its officers, employees or agents arising out of or resulting from the negligence of the applicant or the applicants, agents, employees, or contractors. Applicant's duty to defend, indemnify and hold harmless the City shall include paying the City's Attorney fees, costs and expenses incurred concerning the claim, action, or proceeding. The applicant shall also reimburse the City for City Attorney fees and costs associated with the review of the proposed project and any other related documentation.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

(a) To expedite the review process and encourage collaborative designs among applicants and the City, the Community Development Director may designate one or more preapproved designs for a facility.

(b) The Director may establish a pre-approved design. When the Director finds a proposed pre-approved design meets and exceeds the design standards set forth in this Chapter shall be made available to all applicants.

(c) A design approved pursuant to this Section, shall be deemed to comply with Section 5.42.090 (Concealment Standards for Small Wireless Facilities).

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

Small wireless facility permit applications and eligible facilities request permit applications shall be processed as provided in this Section. This Section is intended to reflect the applicable requirements of Federal law and is not intended to modify, abrogate, or supersede Federal law. To the extent this Section does not reflect applicable Federal law, Federal law shall control.

(a) Within 30 days of submission of an application which includes all of the documents required by the City for the permit, the Director of Community Development or designee will provide notice to the applicant of whether the application is complete. If no notice if provided in this timeframe, the application will be deemed complete.

(b) A notice of an incomplete application will toll all other processing times under this Section until the missing information is submitted. The Director of Community Development or designee shall review the additional information within 10 days and shall provide notice to the application of whether the application is complete within that time.

(c) When an application is determined to be or deemed to be complete, the applicable permit shall be approved or denied in the following timeframes:

(1) Within 60 days for small wireless facility permit applications proposed to be located on an existing support structure or wireless tower.

(2) Within 60 days for eligible facilities request permit applications.

(3) Within 90 days for small wireless facility permit applications proposed to be located on a new structure.

Where permitted by applicable law, the City and applicant may enter into a written agreement to toll, extend, or otherwise adjust the processing times provided herein.

(Added by Ord. 24-01, 4/16/2024; amended by Ord. 25-09, 6/17/2025)

Notwithstanding any other provision of this Chapter to the contrary, an applicant may request an exemption to excuse it from having to comply with any portion of this Chapter on the grounds that the requirement or action taken by the City would violate State or Federal law. The City shall grant the exemption or excuse an applicant from compliance with all or a portion of this Chapter, if it finds based on substantial evidence in the record that the challenged requirement or action is, in fact, preempted by State or Federal law. Such an exemption shall not affect the enforceability of the remainder of this Chapter. If any provision of this Chapter is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Chapter, which shall be enforced to the fullest extent possible.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)

The City reserves the right to reconsider the permit at the end of a 10-year time period from the date of the original permit approval. Reconsideration items to be reviewed may include, but are not limited to, conformance with all applicable objective standards, availability of new technologies, conformance with the objective concealment standards imposed on the facility, operation of applicable radio frequency standards and regulations (as they may be amended from time to time), and compliance with Federal, State and local regulations, including the City's Noise Ordinance.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025

Within 30 days of terminating the operation of any facility approved under this Chapter, for any reason, including, but not limited to, inoperable equipment, abandonment or technical obsolescence, the applicant shall notify the City of such termination. Said notification shall be in writing, shall specify the date of termination and shall include reference to the applicable permit number. At the applicant's sole expense and responsibility, all component elements of a terminated wireless communication facility shall be removed in accordance with applicable health and safety requirements and the site restored to its condition prior to the installation of the facility within 90 days from the date the use of the facility is terminated.

At any time after 90 days of discontinued use and/or operation of a facility, the City may remove the facility, repair any and all damage to the premises caused by such removal, and otherwise restore the premises as is appropriate to be in compliance with applicable code. The City may, but shall not be required to, store the facility (or any part thereof). The owner of the premises upon which the abandoned facility was located, and all prior operators of the facility, shall be jointly liable for the entire cost of such removal, repair, restoration, and storage, and shall remit payment to the City promptly after demand therefore is made. The City may, in lieu of storing the removed facility, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City.

(Added by Ord. 21-01, 2/16/21; amended by Ord. 24-01, 4/16/2024; Ord. 25-09, 6/17/2025)