Chapter 17.92 — WIRELESS—ELIGIBLE FACILITIES REQUEST (6409)

17.92.010 - Purpose.

modified

A.

Background. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, codified as 47 U.S.C. § 1455(a) ("Section 6409"), generally requires that state and local governments "may not deny, and shall approve" requests to collocate, remove or replace transmission equipment at an existing tower or base station. Federal Communications Commission ("FCC") regulations interpret this statute and establish procedural rules for local review, which generally preempt certain subjective land-use regulations, limit permit application content requirements and provide the applicant with a potential "deemed granted" remedy when the state or local government fails to approve or deny the request within sixty (60) days after submittal (accounting for any tolling periods). Moreover, whereas Section 704 of the Telecommunications Act of 1996, Pub. L. 104-104, codified as 47 U.S.C. § 332, applies to only "personal wireless service facilities" (e.g., cellular telephone towers and equipment), Section 6409 applies to all "wireless" facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.).

B.

Findings. The City Council finds that the overlap between wireless deployments covered under Section 6409 and other wireless deployments, combined with the different substantive and procedural rules applicable to such deployments, creates a potential for confusion that harms the public interest in both efficient wireless facilities deployment and carefully planned community development in accordance with local values. The City Council further finds that a separate permit application and review process specifically designed for compliance with Section 6409 contained in a separate section devoted to Section 6409 will mitigate such potential confusion, streamline local review and preserve the city's land-use authority to maximum extent possible.

C.

Intent. The intent of this chapter to establish reasonable and uniform standards and procedures in a manner that protects and promotes the public health, safety and welfare, consistent with and subject to federal and state law, for collocations and modifications to existing wireless facilities pursuant to Section 6409 and related FCC regulations codified in 47 C.F.R. §§ 1.40001 et seq.

This chapter is not intended to, nor shall it be interpreted or applied to:

1.

Prohibit or effectively prohibit any personal wireless service provider's ability to provide personal wireless services;

2.

Prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules, regulations or other legal requirements for rights-of-way management;

3.

Unreasonably discriminate among providers of functionally equivalent services;

4.

Deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC's regulations concerning such emissions;

Prohibit any collocation or modification that the city may not deny under federal or state law;

6.

Impose any unfair, unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee is charged; or

7.

Otherwise authorize the city to preempt any applicable federal or state law.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

This section applies to all requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section 6409. However, the applicant may voluntarily elect to seek a conditional use permit or administrative wireless permit subject to the provisions of Chapter 17.90 (Wireless—New and Substantially Changed) of this title.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Section 6409 Approval. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted with a written request for approval under Section 6409 shall require administrative approval from the city consistent with all valid and enforceable terms and conditions of the underlying use permit or other prior regulatory authorization for the tower or base station (a "Section 6409 Permit").

A Section 6409 Permit shall be subject to the Public Works Director's review and approval the facility is located in the public rightof-way and subject to the Planning Division's review and approval for all other facilities. Each Section 6409 Permit shall be approved, conditionally approved or denied without prejudice pursuant to the standards and procedures contained in this chapter.

B.

Other Permits and Regulatory Approvals. No collocation or modification approved pursuant to this chapter may occur unless the applicant also obtains all other permits and regulatory approvals as may be required by any other federal, state or local government agencies, which includes without limitation any permits and/or regulatory approvals issued by other city

departments. Furthermore, any Section 6409 approval granted under this chapter shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or regulatory approvals.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Application Required. The city shall not approve any request for a Section 6409 Permit except upon a duly filed application consistent with this section and any other written rules the Community Development Director or Public Works Director may establish from time to time in any publicly-stated format.

B.

Application Content. All applications for a Section 6409 Permit must include all the information and materials required by the Community Development Director or Public Works Director for the application. In addition, the City Council authorizes the Community Development Director and Public Works Director to do the following:

1.

Develop, publish and from time-to-time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that are found necessary, appropriate or useful for processing a Section 6409 permit. However, the Community Development Director or Public Works Director may not require documentation proving the need or presenting the business case for the proposed modification; and

2.

Establish other reasonable rules and regulations, which may include, without limitation, regular hours for appointments with applicants, as deemed necessary or appropriate to organize, document and manage the application intake process. All such rules and regulations must be in written form and publicly stated to provide applicants with prior notice.

C.

Procedures for a Duly Filed Application. Any application for a Section 6409 Permit will not be considered duly filed unless submitted in accordance with the procedures in this subsection:

1.

Pre-Submittal Conference.

a.

Before application submittal, the applicant is encouraged (but not required) to schedule and attend a pre-submittal conference with the Planning Division or Public Works Department for all proposed collocations or modifications to any concealed or camouflaged wireless tower or base station. Pre-submittal conferences for all other proposed collocations or modifications are strongly encouraged but not required.

b.

The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification and review process, including whether the project qualifies for approval pursuant

to Section 6409 or not; any latent issues in connection with the existing wireless tower or base station, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments responsible for application review; and application completeness issues.

c.

To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that city may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable.

d.

The city shall use reasonable efforts to provide the applicant with an appointment within five (5) working days after receiving a written request and any applicable fee or deposit to reimburse the city for its reasonable costs to provide the services rendered in the pre-submittal conference.

2.

Submittal Appointment.

a.

All applications must be submitted to the city at a pre-scheduled appointment. Applicants may submit up to five (5) applications per appointment with the Public Works Department for all facilities in the public right-of-way and the Planning Division for all other facilities.

b.

The city shall use reasonable efforts to provide the applicant with an appointment within five (5) working days after receiving a written request and, if applicable, confirms that the applicant complied with the pre-submittal conference requirement. Any application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed unless the applicant received a written exemption from the Community Development Director or Public Works Director prior to the submittal.

D.

Applications Deemed Withdrawn. To promote efficient review and timely decisions, any application governed under this chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the city within ninety (90) calendar days after the application was deemed incomplete in a written notice to the applicant. The Community Development Director or Public Works Director, at his or her discretion, may grant a written extension for up to an additional thirty (30) calendar days when the applicant submits a written request prior to the ninetieth day that shows good cause to grant the extension. Delays due to circumstances outside the applicant's reasonable control will be considered good cause to grant the extension.

E.

Peer and Independent Consultant Review.

1.

Authorization. The City Council authorizes the Community Development Director and Public Works Director to, at their discretion, select and retain an independent consultant with specialized training, experience and/or expertise in telecommunications issues in connection with any permit application.

2.

Scope. The Community Development Director or Public Works Director may request an independent consultant review on any issue that involves specialized or expert knowledge in connection with wireless facilities deployment or permit applications for wireless facilities, which include without limitation:

a.

Permit application completeness and/or accuracy;

b.

Pre-construction planned compliance with applicable regulations for human exposure to RF emissions;

c.

Post-construction actual compliance with applicable regulations for human exposure to RF emissions;

d.

The applicability, reliability and/or sufficiency of any information, analyses or methodologies used by the applicant to reach any conclusions about any issue with the city's discretion to review; and

e.

Any other issue identified by the Community Development Director or Public Works Director that requires expert or specialized knowledge. The Community Development Director or Public Works Director may request that the independent consultant prepare written reports, testify at public meetings, hearings and/or appeals and attend meetings with city staff and/or the applicant.

3.

Consultant Fees.

a.

Subject to applicable law, in the event that the Community Development Director or Public Works Director elects to retain an independent consultant in connection with any permit application, the applicant shall be responsible for the reasonable costs in connection with the services provided, which may include without limitation any costs incurred by the independent consultant to attend and participate in any meetings or hearings.

b.

If the city elects to retain an independent consultant, the city shall collect a fee prior to accepting an application for filing. The amount of the fee collected shall be in accordance with the most recently adopted City Council Resolution.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Administrative Review. The Planning Division or Public Works Department shall administratively review a complete and duly filed application for a Section 6409 Permit and may act on such application without prior notice or a public hearing.

B.

Decision Notices. The Community Development Director or Public Works Director shall make his or her decision through a decision letter. Such letter shall be sent to the applicant within five (5) days after city action has been taken or before the FCC

Shot Clock expires (whichever occurs first). If the permit is denied, the letter must contain the reasons for the decision, a statement that the denial is without prejudice and instructions on how to file an appeal.

C.

Necessary Findings for Approval. The Public Works Director (for facilities in the public right-of-way) or the Community Development Director (for all other facilities) shall make the following findings prior to approving or conditionally approving a Section 6409 Permit:

1.

The project involves the collocation, removal or replacement of transmission equipment on an existing wireless tower or base station; and

2.

The project does not substantially change the physical dimensions of the existing wireless tower or base station.

D.

Criteria for Denial without Prejudice. Notwithstanding any other provision in this chapter, and consistent with all applicable federal laws and regulations, the Public Works Director (for facilities in the public right-of-way) or the Community Development Director (for all other facilities) may deny a Section 6409 Permit without prejudice, provided one of the following criteria can be met:

1.

The project does not meet the findings required in subsection C above;

2.

The project involves the replacement of the entire support structure; or

3.

The project violates any legally enforceable law, regulation, rule, standard or permit condition reasonably related to public health or safety.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

Subject to any applicable limitations in federal or state law, nothing in this chapter is intended to limit the city's authority to conditionally approve an application for a Section 6409 Permit to protect and promote the public health and safety. In addition to all other conditions adopted by the approval authority, all Section 6409 Permit approvals shall be automatically subject to the conditions in this section. The Community Development Director or Public Works Director (or the City Manager on appeal) shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved facility consistent with the goals of this chapter.

A.

Permit Term. The city's grant or grant by operation of law of a Section 6409 Permit approval constitutes a federally-mandated modification to the underlying permit or other prior regulatory authorization for the subject tower or base station, and will be regarded as a modification to the underlying approval for the subject tower or base station. The city's grant or grant by operation of law of a Section 6409 Permit approval will not extend the permit term, if any, for any underlying permit or other underlying prior regulatory authorization. Accordingly, the term for a Section 6409 Permit approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station.

B.

Compliance Obligations Due to Invalidation. In the event that any court of competent jurisdiction invalidates all or any portion of Section 6409 or any FCC rule that interprets Section 6409 such that federal law would not mandate approval for any Section 6409 approval(s), such approval(s) shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved Section 6409 approvals or the Community Development Director grants an extension upon written request from the permittee that shows good cause for the extension, which includes without limitation extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Community Development Director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated Section 6409 approval when it has obtained the applicable permit(s) or submitted an application for such permit(s) before the one-year period ends.

C.

City's Standing Reserved. The city's grant of a Section 6409 approval does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409, any FCC rules that interpret Section 6409 or any Section 6409 approval.

D.

Compliance with Approved Plans. Before the permittee submits any applications to the Building Division, the permittee must incorporate this section 6409 approval, all conditions associated with this section 6409 approval and the approved photo simulations into the project plans (the "approved plans"). The permittee must construct, install and operate the wireless facility in substantial compliance with the approved plans, as determined by the Community Development Director. Any material alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other city departments or public agencies with jurisdiction over the wireless facility, must be submitted in a written request subject to the Community Development Director's prior review and approval. The Community Development Director may revoke the Section 6409 approval if the Community Development Director finds that the requested alteration, modification or other change causes a substantial change as that term is defined by the FCC in 47 C.F.R. § 1.40001 (b)(7), as may be amended.

E.

Build-Out Period. This section 6409 approval will automatically expire one year from the approval or deemed-granted date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Community Development Director may grant one written extension for up to one year when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least thirty (30) days prior to the automatic expiration date in this condition.

F.

Maintenance Obligations; Vandalism. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved plans and all conditions in this section 6409 approval. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the city, shall remove and remediate any graffiti or other vandalism at the site within forty-eight (48) hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.

G.

Compliance with Laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law ("laws") applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this section 6409 approval, which includes without limitation any laws applicable to human exposure to RF emissions. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee's obligations to maintain compliance with all laws. In the event that the city fails to timely notice, prompt or enforce compliance with any applicable provision in the EMMC, any permit, any permit condition or any applicable law or regulation, the applicant or permittee will not be relieved from its obligation to comply in all respects with all applicable provisions in the EMMC, any permit, any permit condition or any applicable law or regulation.

H.

Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee's or its authorized personnel's construction, installation, operation, modification, maintenance, repair, removal and/or other activities at the site. Undue or unnecessary adverse impacts shall not be interpreted to mean aesthetic impacts that may result from the city's issuance of this section 6409 approval consistent with applicable law. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines except during normal construction hours authorized by the EMMC. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the city. The Community Development Director may issue a stop work order for any activities that violates this condition.

I.

Inspections; Emergencies. The permittee expressly acknowledges and agrees that the city's officers, officials, staff or other designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the city's officers, officials, staff or other designee may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the city's officers, officials, staff or other designee while any such inspection or emergency access occurs.

J.

Permittee's Contact Information. The permittee shall furnish the Community Development Director with accurate and up-to-date contact information to reach a live person responsible for the wireless facility, which includes without limitation a direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times and immediately provide the Community Development Director with updated contact information in the event that the contact information changes.

K.

Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed, shall defend, indemnify and hold harmless the city, City Council and city boards, commissions, agents, officers, officials, employees and volunteers from any and all:

1.

Damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings ("claims") brought against the city or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the city's approval of this section 6409 approval;

2.

Other claims of any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee's or its agents', directors', officers', employees', contractors', subcontractors', licensees', or customers' acts or omissions in connection with this section 6409 approval or the wireless facility. In the event the city becomes aware of any claims,

the city will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense; and

3.

The permittee expressly acknowledges and agrees that the city shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the city's defense, and the property owner and/or permittee (as applicable) shall promptly reimburse city for any costs and expenses directly and necessarily incurred by the city in the course of the defense. The permittee expressly acknowledges and agrees that the permittee's indemnification obligations under this condition are a material consideration that motivates the city to approve this section 6409 approval, and that such indemnification obligations will survive the expiration or revocation of this section 6409 approval.

L.

Performance Bond. Before the applicable city department issues any construction or encroachment permit, in connection with this section 6409 approval, the permittee shall post a performance bond from a surety and in a form acceptable to the Community Development Director in an amount reasonably necessary to cover the cost to remove the improvements and restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, and in accordance with Section 65964(a) of the California Government Code, the Community Development Director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility to a standard compliant with applicable laws. In addition, the Community Development Director may modify this condition to the extent reasonably necessary to comply with any reasonable requirements imposed by the permittee's surety.

M.

Recall to Approval Authority; Permit Revocation. The Section 6409 Permit be subject to Section 17.10.130 (General Regulations— Revocation of Permits) of this title.

N.

Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee. The permittee may keep electronic records; provided, however, that hard copies or electronic records kept in the city's regular files will control over any conflicts between such city-controlled copies or records and the permittee's electronic copies, and complete originals will control over all other copies in any form.

O.

Undergrounded Utilities. In the event that other electric or communications utilities in the public right-of-way underground their facilities where the permittee's wireless facility is located, and the permittee's wireless facility is located in the public right-of-way, the permittee must underground its equipment except the antennas and antenna supports. Such undergrounding shall occur at the permittee's sole cost and expense except as reimbursed pursuant to law.

P.

Electric Meter Removal. In the event that the electric utility provider adopts or changes its rules obviating the need for a separate or ground-mounted electric meter and enclosure in the public right-of-way, the permittee on its own initiative and at its sole cost and expense shall apply to the city for the required encroachment and/or other ministerial permit(s) to remove the separate or ground-mounted electric meter and enclosure and restore the affected area to its original condition.

Q.

Rearrangement and Relocation.

1.

The permittee acknowledges that the city, in its sole discretion and at any time, may:

a.

Change any street grade, width or location;

b.

Add, remove or otherwise change any improvements in, on, under or along any street owned by the city or any other public agency, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications; and/or

c.

Perform any other work deemed necessary, useful or desirable by the city (collectively, "city work").

2.

The city reserves the rights to do any and all city work without any admission on its part that the city would not have such rights without the express reservation in this permit. In the event that the Public Works Director determines that any city work will require the permittee's wireless facility located in the public right-of-way to be rearranged and/or relocated, the permittee shall, at its sole cost and expense, do or cause to be done all things necessary to accomplish such rearrangement and/or relocation.

3.

If the permittee fails or refuses to either permanently or temporarily rearrange and/or relocate the permittee's wireless facility within a reasonable time after the Public Works Director's notice, the city may (but will not be obligated to) cause the rearrangement or relocation to be performed at the permittee's sole cost and expense. The city may exercise its rights to rearrange or relocate the permittee's wireless facility without prior notice to permittee when the Public Works Director determines that the city work is immediately necessary to protect public health or safety.

4.

The permittee shall reimburse the city for all costs and expenses in connection with such work within ten (10) days after a written demand for reimbursement and reasonable documentation to support such costs. In addition, the permittee shall indemnify, defend and hold the city, its agents, officers, officials, employees and volunteers harmless from and against any claims in connection with rearranging or relocating the permittee's facility, or turning on or off any water, oil, gas, electricity or other utility service in connection with the permittee's facility.

R.

Abandoned Wireless Facilities. The wireless facility authorized under this permit shall be deemed abandoned if not operated for any continuous six-month period. Within ninety (90) days after a wireless facility is abandoned or deemed abandoned, the permittee and/or property owner shall completely remove the wireless facility and all related improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the EMMC. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within said ninety-day period, the city shall have the right (but not the obligation) to perform such removal and restoration with or without notice, and the permittee and property owner shall be jointly and severally liable for all costs and expenses incurred by the city in connection with such removal and/or restoration activities.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A Section 6409 Permit shall be valid for twelve (12) months after the date of approval. If the applicant has proceeded in good faith toward the implementation of the Section 6409 Permit as determined by the Community Development Director or Public Works Director, the applicant may request a twelve-month extension. The applicant shall submit the request prior to the expiration date. The extension shall be considered by the Community Development Director or Public Works Director within thirty (30) days of the request. No additional extensions shall be permitted.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

The Community Development Director's and Public Works Director's decisions are appealable to the City Manager. The City Manager's decision shall be final. Refer to Section 17.10.100 (General Regulations—Ability to Appeal) of this title for additional information.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)