Hayward Municipal Code § 10-13.100 Administrative Use Permit or Use Permit Required for Any Exception…

Footnotes:

--- (1) ---

Note— (Added by Ordinance 97-12, adopted July 15, 1997)

This article shall be known and may be cited as the Telecommunications Antenna and Facilities Ordinance of the City of Hayward.

This article supplements the requirements of Article 1, Chapter 10, of the Hayward Municipal Code, the Zoning Ordinance, by establishing standards for the appropriate siting and change in location of any telecommunications antenna and a related facility, including but not limited to antennas for wireless telecommunications facilities and amateur radio installations. These standards are adopted to promote the following objectives:

(a) Protect against the potentially adverse effects of telecommunications antenna and facility installation;

(b) Protect against visual blight which may result from unregulated installation of antennas and other telecommunications facilities;

(c) Protect the environmental resources of Hayward;

(d) Insure that a competitive and broad range of telecommunications services and high quality telecommunications infrastructure are provided; and

(e) Create and preserve telecommunications facilities that will serve as an important and effective part of Hayward's emergency response network.

The City Manager or his or her designee is authorized to issue regulations which are consistent with and supplement the requirements of this article. Such regulations may include but are not limited to definitions of terms used in this article. Such regulations shall be incorporated by reference as an Appendix (A) to this Article 10-13, after they are approved by the City Manager or his or her designee.

The following requirements shall apply to the siting of any telecommunications antenna or related facility in the City of Hayward:

(a) Consistency with the General Plan and any other officially adopted land use plan, policy and guideline of the City of Hayward, including but not limited to requirements of the Hayward Zoning Ordinance.

(b) Consistency with the requirements of any other governmental agency with jurisdiction over the installation of a telecommunications antenna or related facility.

(c) Any telecommunications facilities antenna located within the Air Terminal subdistrict shall comply with Federal Aviation Administration regulations and permit requirements.

(d) Any applicable easements or similar restrictions on the subject property, including adopted Planned Development conditions.

(e) The antenna or telecommunications facilities involved must be accessory to the primary use of a property (not the sole use of an otherwise vacant parcel), except where located in an area zoned as an Industrial or Agricultural District.

(f) The combined radiation levels produced by all the antennas and related telecommunications facilities present on the parcel shall not exceed the radio frequency emission standards adopted by the Federal Communications Commission.

(g) All telecommunications carriers and providers engaged in the business of transmitting, supplying, or furnishing of telecommunications originating or terminating in the City of Hayward shall register with the City pursuant to section 10-13.040 of this article.

(a) Registration Required. All telecommunications carriers and providers that offer or provide any telecommunications services for a fee directly to the public, either within the City of Hayward or outside the corporate limits from telecommunications facilities within the City, and any commercial business operating television or radio transmission antennas, shall register with the City pursuant to this article on forms to be provided by the Director of Community and Economic Development/Planning Director. The registration of all carriers applies to those businesses currently operating within the City as well as those who will require future siting of new antennas in the City. A revised registration statement shall also be filed no later than 30 days before the abandonment, removal, or change in location of any telecommunications antenna or related facility. Each registrant is required to inform the City, within 30 days of any material change of any information set forth in the registration statement.

(b) Purpose. The purpose of these registration requirements is to provide the City with accurate and current information concerning the wireless telecommunications carriers and providers who offer or provide wireless telecommunications services within the City, or who own or operate telecommunications facilities with the City and assist in enforcement of this article's requirements.

(c) Contents. The registration statement shall contain the following information and such other information which the Director of Community and Economic Development/Planning Director may reasonably require:

(1) The registrant's identity and registered status, and those of any affiliates, if the registration pertains to a co-located site.

(2) The name, address, and telephone number of the officer, agent, or employee responsible for the registration statement.

(3) A map and narrative description of registrant's existing and proposed telecommunications facilities within the City of Hayward.

(4) A description of the telecommunications services that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses, or institutions within the City.

(5) Information sufficient to determine that the registrant has applied for and received any certificate of authority required by the California Public Utility Commission.

(6) Information sufficient to determine that the registrant has applied for and received any construction permit, operating license, or other approvals required by the Federal Communications Commission (FCC).

(a) Exempt Telecommunications Antenna and Related Facilities. The following telecommunications antenna and telecommunications facilities are exempt from the discretionary review requirements of this article if such proposed antenna or other related facility complies with section 10-13.030 and the minimum setback and height requirements set forth in subdivision (b) of this section. In addition, the Director of Community and Economic Development/Planning Director may require the owner of the proposed telecommunications antenna or related facility, to verify compliance with the requirements of this article.

1. A single building-mounted, receive-only radio and/or television antenna (excluding any parabolic antenna), for the sole use of the tenant occupying a residential parcel or occupant of a commercial or industrial parcel on which the radio or television antenna is located; with an antenna height not exceeding 15 feet above the structure, including any mast.

2. A single ground- or building-mounted receive only radio or television satellite dish antenna including Direct Broadcast System (DBS) or Digital Satellite System (DSS) antenna, which does not exceed 36 inches in diameter, for the sole use of the occupant(s) of a residential, commercial, or industrial parcel on which the satellite dish is located; provided the height of said dish does not exceed the height of the roof ridge line of a structure on which it is to be installed or is screened from view from the public right-of-way.

3. All citizens band radio antenna or antenna operated by a federally licensed amateur radio operator as part of the Amateur Radio Service which legally existed as of the effective date of this ordinance.

4. A mobile telecommunications facility operating on a temporary basis at various locations to provide public information coverage of news events.

5. Hand held devices such as cell phones, business-band mobile radios, walkie-talkies, cordless telephones, garage door openers, and similar devices as determined by the Director of Community and Economic Development/Planning Director.

6. Government-owned and -operated antennas, if the height does not exceed 60 feet.

(b) Requirements for Exempt Facilities. Exempt telecommunications antenna and related facilities listed above may be installed, erected, maintained, and/or operated in any residential zoning district (including Planned Development, Mobile Home Park, and Agricultural Districts), and any commercial and industrial zoning district, so long as all the following conditions are met:

1. The antenna use involved shall be accessory to the primary use of the property if the primary use of the property is not an approved telecommunications facility.

2. Each exempt antenna shall be designed to blend into the surrounding environment to the greatest extent feasible and include appropriate public safety measures.

3. In a residential zone, no more than one support structure for a citizen band antenna or licensed amateur radio operator antenna and/or satellite dish 36 inches or less in diameter, is allowed on the parcel.

4. The antenna shall comply with the applicable setback requirements, including those set forth in the Zoning Ordinance.

In addition to the requirements of section 10-13.030, the following minimum criteria apply to any telecommunications facility classified as a Class 1, Class 2, or a Class 3 facility by this article, unless waived by the Director of Community and Economic Development/Planning Director:

(a) Provision of information required for an application to install or relocate a telecommunications facility, which may include, but shall not be limited to the following:

1. Completed supplemental project information form, a specific maximum request gross cross-sectional area or silhouette of the facility, service area maps, network maps, alternative site analysis, visual impact demonstrations including mock-ups and/or photo-montages, visual impact analysis, electromagnetic radiation exposure studies, title reports, easements, or other instruments showing legal access, information regarding security measures, and facility design alternatives to the proposal.

2. A list of other telecommunications facilities on which the registrant's telecommunications antenna and related facility could be co-located.

3. A master plan for all related facilities within the city limits of Hayward and within one-quarter mile radius.

4. The Director of Community and Economic Development/Planning Director may release an applicant from any otherwise required information upon a finding that, in the specific case involved, said information is not necessary to process or make a decision on the application being submitted.

(b) The Director of Community and Economic Development/Planning Director may also require the telecommunications facility provider to fund the cost of an independent expert to review any technical materials submitted including, but not limited to those required by this article in those cases where a technical demonstration of unavoidable need or unavailability of alternatives is appropriate. The applicant shall pay all the costs of said review, including any administrative costs incurred by the City. Any proprietary information disclosed to the City or the expert hired shall remain confidential and shall be kept confidential from any third party to the extent allowed by law.

(a) A Telecommunications Site Review (sometimes "TSR") application must be approved by the Director of Community and Economic Development/Planning Director before the installation of any Class 1 facility described in this section, unless such requirement is waived. The findings required for approval of a TSR application are set forth in subdivision (b) of this section. All procedures for a Site Plan Review contained in the Zoning Ordinance shall apply except for the findings required to approve a Site Plan Review. In addition, any necessary building permit shall also be issued before the erection or change in location of a Class 1 facility, unless such requirement is waived by the Director of Community and Economic Development/Planning Director.

1. A single building-mounted, receive-only radio and/or television antenna (excluding any parabolic antenna), for the sole use of the tenant occupying a residential parcel or occupant of a commercial or industrial parcel on which the radio or television antenna is located; with an antenna height greater than 15 feet above the structure but less than 35 feet, including any mast.

2. A ground- or building-mounted receive-only radio or television satellite dish antenna which exceeds 36 inches in diameter but is not larger than 8 feet in diameter, provided the height of said dish does not exceed the height of the roof ridge line of a structure on which it is to be installed or is screened from view from the public right-of-way.

3. A ground-mounted telecommunications facility satellite dish antenna which exceeds 8 feet in diameter located in the Industrial District, and utilized for public and/or quasi-public uses where the satellite dish antenna is found to be compatible with the existing industrial use of the property; provided the height of said dish is screened from view from the public right-of-way.

4. Government-owned and -operated antennas where the height exceeds 60 feet.

5. One or more building-mounted telecommunications facility antenna found to be unobtrusive or undetectable by way of design and/or placement on the building.

6. A telecommunications facility located in the Industrial District less than 65 feet in height and set back a minimum of 300 feet from a residential zoned property, and utilized for public and/or quasi-public uses where the facility is found to be compatible with the existing industrial uses of the property.

7. A telecommunications facility mounted on an existing monopole or tower support structure located in any zoning district, and utilized for public and/or quasi-public uses where the facility is found to be compatible with the existing land uses on and adjacent to the property.

8. A telecommunications facility located in the Air Terminal-Industrial District not greater than 50 feet in height, in compliance with the applicable sections of this article, and utilized for public and/or quasi-public uses where the facility is found to be compatible with the existing industrial uses on or adjacent to the property.

(b) Findings for Approval of a Telecommunications Site Review Application. In addition to the requirements of this article, a TSR application may be approved only if all of the following additional findings are made:

1. The proposed Class 1 facility will be operated in a manner determined to be acceptable and compatible with surrounding structures and uses.

2. The proposed Class 1 facility takes into consideration physical and environmental constraints.

3. The development complies with the intent of this article and other applicable City of Hayward policies.

(c) Referral of Certain Class 1 Facility Telecommunications Site Review Applications to the Planning Commission. The Director of Community and Economic Development/Planning Director may refer a TSR application filed for a telecommunications antenna or related facility to the Planning Commission as an application for a Use Permit if the public interest would be furthered by having the Planning Commission review such application, or if any proposed Class 1 facility fails to meet one or more of the applicable standards for a Class 1 facility.

(a) An administrative use permit (sometimes "AUP") must be approved by the Director of Community and Economic Development/Planning Director in accordance with the requirements of this article, the procedures set forth in the Zoning Ordinance, and any necessary building permit issued before the installation, erection, or change in location of any antenna or telecommunications facility described in this section as a Class 2 facility, unless any such requirement is waived.

1. A telecommunications facility in the Industrial District greater than 65 feet but not exceeding 80 feet in height and set back a minimum of 300 feet from a residential zoned property utilized for public and/or quasi-public uses where it is found to be compatible with the existing industrial uses of the property.

2. A telecommunications facility located in the Air Terminal-Industrial District greater than 50 feet in height in compliance utilized for public and/or quasi-public uses where it is found to be compatible with the existing industrial uses of the property.

3. Any telecommunications facility designed in a stealth structure which is greater than 15 feet above the existing roof ridge line located within a residential area, including Planned Development and Agricultural districts.

4. A telecommunications facility located in any commercial district which does not exceed 40 feet utilized for public and/or quasi-public uses where it is found to be compatible with the existing commercial uses on the property and with adjacent land uses.

5. Any ground-mounted telecommunications facilities located in any residential district (including Planned Development Districts) utilized for public and/or quasi-public uses where it is found to be compatible with the existing residential uses on the property and with adjacent land uses.

6. A building-or tower-mounted citizens band radio antenna or antenna operated by federally licensed amateur radio operator as part of the Amateur Radio Service, including any mast, if the overall height (post and antenna) measured from grade is greater than 35 feet but does not exceed 65 feet.

(b) Findings for Approval of an Administrative Use Permit Application. In addition to the other requirements of this article, an Administrative Use Permit may be approved only if the Administrative Use Permit findings required by section 10-1.3125 are made.

(c) Referral of Certain Class 2 Facility Administrative Use Permit Applications to the Planning Commission. The Director of Community and Economic Development/Planning Director may refer an AUP application filed for a telecommunications antenna or related facility to the Planning Commission as an application for a Use Permit if the public interest would be furthered by having the Planning Commission review such application, or any proposed Class 2 facility fails to meet one or more of the applicable standards for a Class 2 facility.

(a) A Use Permit (sometimes "UP") must be approved by the Planning Commission in accordance with the requirements of this article and the procedures set forth in the Zoning Ordinance and any necessary building permit also approved before the installation, erection, or change in location of the antennas and telecommunications facilities hereafter described as Class 3 facilities, unless such requirements is waived by the Planning Commission.

1. A telecommunications antenna mounted on a monopole or tower and related facilities located in the Industrial District greater than 80 feet in height and set back a minimum of 400 feet from a residential zoned property utilized for public and/or quasi-public uses.

2. An antenna mounted on either monopole or tower support structures and related facilities greater than 40 feet in height located in any commercial or Agricultural districts utilized for public and/or quasi-public uses.

3. A building- or tower-mounted citizens band radio antenna or antenna operated by federally licensed amateur radio operator as part of the Amateur Radio Service, including any mast, if the overall height (post and antenna) measured from grade is greater than 65 feet.

4. Any radio or television broadcast antenna located in the Industrial District and set back at least 3,000 feet from any residential district (including Planned Development and Mobile Home Park Districts).

(b) Findings for Approval of Use Permit Application. In addition to the other requirements of this article, a Use Permit may be approved only if the UP findings required by section 10-1.3225 are made.

(a) Exceptions to the requirements specified within this article may be granted by the Planning Commission's approval of a Use Permit, based on the findings required for a Use Permit and the additional finding that failure to adhere to the standard under consideration in the specific instance will not increase the visibility of the facility or decrease public safety. A minor exception, as determined by the Director of Community and Economic Development/Planning Director, may be granted through issuance of an administrative use permit.

(b) In addition to the other requirements of this article, the following additional requirements may apply to the approval of a Use Permit for an exception:

1. An exception to any fire safety related requirement may only be granted upon written concurrence by the Fire Chief.

2. An exception from tower setback requirements may be approved under any of the following circumstances:

a. The facility is proposed to be co-located onto an existing, legally-established telecommunications tower; and

b. Overall, the reduced setback enables further mitigation of adverse visual and other environmental impacts than would otherwise be possible.

(a) Each telecommunications carrier applicant shall provide a letter to the Director of Community and Economic Development/Planning Director stating willingness to allow other carriers to co-locate on their facilities wherever feasible or a written explanation why the subject facility is not a candidate for co-location.

(b) Whenever possible, telecommunications facilities should be located on existing buildings, existing poles, or other existing support structures.

(c) Approval of the project is subject to the decision-making body making a finding that the proposed site results in fewer or less severe environmental impacts than any feasible alternative site. The City may require independent verification of this analysis at the applicant's expense. When requested by the Director of Community and Economic Development/Planning Director, the applicant shall prepare or cause to be prepared an analysis of all reasonable, technically feasible, alternative locations and/or facilities which would provide the proposed telecommunications service. The intention of the alternatives analysis is to present alternative strategies which would minimize the number or size and adverse environmental impacts of facilities necessary to provide the needed services to the City and surrounding rural and urban areas. The analysis shall address the potential for co-location at an existing or a new site and the potential to locate facilities as close as possible to the intended service area. It shall also explain the rationale for selection of the proposed site in view of the relative merits of any of the feasible alternatives.

(d) All co-located and multiple-user telecommunications facilities shall be designed to promote facility and site sharing. To this end, telecommunications towers and necessary appurtenances, including but not limited to parking areas, access roads, utilities, and equipment buildings shall be shared by site users when in the determination of the Director of Community and Economic Development/ Planning Director or Planning Commission, as appropriate, this will minimize overall visual impact to the community.

(e) In order to avoid an antenna array group which may be undesirable or have detrimental effects, a maximum of three sets of antennas from three different telecommunications carriers shall be placed on any single monopole, unless technological advances in the design of the antennas make them minimally visually obtrusive.

(f) Although co-location is encouraged, there may be cases where separate facilities may have less adverse visual impacts, and therefore preferred over a single co-located facility. The Director of Community and Economic Development/ Planning Director shall retain the authority to make such a determination.

(a) General Requirements. No telecommunications antenna or related facility shall be sited or operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health. To that end, any telecommunications antenna and related facilities operating alone or in conjunction with other telecommunications facilities shall not generate electromagnetic frequency (EMF) radiation in excess of the standards for permissible human exposure to EMF as adopted by the California Public Utility Commission (CPUC) General Order 159, the Federal Communications Act of 1996, and/or including any other standards adopted by the FCC that may come henceforth be adopted or amended.

(b) Data to Accompany Permit Application. A Radio Frequency Radiation (RFR) Report from a licensed Radio Frequency Engineer of said compliance shall be provided by the carrier which documents the proposed facility's anticipated RFR levels at the time any application required by this article is submitted to the Director of Community and Economic Development/ Planning Director.

(c) Cumulative EMR Emission Data. In addition, all broadcast radio and television facilities and wireless telecommunications facilities where three or more telecommunications facilities carriers are co-located on the same structure or on a parcel or on a separate parcel of land within 200 feet of another telecommunications facilities antenna shall prepare and submit an annual RFR monitoring report. The report shall address the cumulative field measurements of radio frequency emissions of all antennas installed at the subject site or location. The report shall quantify the radio frequency emissions and compare the results with either the most current American National Standards Institute (ANSI) standards, or other standards adopted by the FCC or CPUC. Said report shall be subject to review and approval by the Director of Community and Economic Development/Planning Director for consistency with the accepted standards. If the City finds that the wireless telecommunications facilities service providers do not meet these standards, the service providers shall be required to bring the entire site into compliance with said standards, or be subject to review before the Planning Commission at a public hearing where the operation permit may be modified or revoked.

Notice of the filing of a permit application required by this article shall be given pursuant to section 10-1.2820. In addition to such public notice, a notice of consideration or a public hearing or notice of decision, as appropriate, of a Telecommunications Site Review, Administrative Use Permit or Use Permit regarding the establishment or modification of a telecommunications facility shall be provided by mail to the operators of all telecommunications facilities registered with the City of Hayward pursuant to section 10-13.040, with a facility located within one mile of the subject parcel.

Any person who disagrees with a ruling or interpretation of the Director of Community and Economic Development/Planning Director regarding the application of the requirements of this article or action taken by the Planning Commission may appeal the matter in accordance with the provisions of the Zoning Ordinance and this section. For the purposes of this section, a ruling is a discretionary action on a permit application, and an interpretation refers to a determination regarding the application of any requirement imposed by this article.

(a) An appeal from a ruling or interpretation regarding a Telecommunications Site Review application shall follow the requirements of section 10-1.3045.

(b) An appeal from a ruling or interpretation regarding an Administrative Use Permit application shall follow the requirements of section 10-1.3145.

(c) An appeal from a ruling or interpretation regarding a Use Permit application shall follow the requirements of section 10-1.3245.

(d) On the filing of a timely appeal, the Planning Director shall transmit the application to the Planning Commission for consideration, or to the City Council in the case of an appeal from the Planning Commission's decision.

(e) Notwithstanding this section, an individual may file for an exception from the provisions of this article pursuant to section 10-13.120.

When there is a question regarding the interpretation of this article, or its application to any specific case or situation, the Director of Community and Economic Development/Planning Director may refer said question to the Planning Commission, according to the role and responsibilities of said Commission specified in article 2-3.

All decisions granting or denying a permit required by this article shall be made in writing, based on the findings required by section 10-13.070 in the case of a Telecommunications Site Review application, or by the Zoning Ordinance for an Administrative Use Permit or Use Permit application.

The decision of the Director of Community and Economic Development/Planning Director or the Planning Commission or the City Council shall take effect in accordance with the provisions of section 10-1.2825.

No approval granted under this article shall convey any right, title or interest in the public rights-of-way, but shall be deemed approved only to use and occupy the public rights-of-way for the limited purposes and term stated in the approval. Further, no approval shall be construed as any warranty of title.

(a) Lapse of Approval. The approval of any Telecommunications Site Review, Administrative Use Permit, or Use Permit authorizing installation or change in location of a telecommunications antenna or related facility shall become void pursuant to section 10-1.3255, or other applicable provision of the Zoning Ordinance

(b) Permit Modification or Revocation. A Telecommunications Site Review, Administrative Use Permit, or Use Permit authorizing the installation or change in location of a telecommunications antenna or related facility may be modified or revoked pursuant to section 10-1.3260, or other applicable provision of the Zoning Ordinance

(c) Expiration or Abandonment of Permit. A Telecommunications Site Review, Administrative Use Permit or Use Permit shall automatically become null and void without notice or hearing upon the occurrence of any of the following events: termination or expiration of the lease or rental agreement pertaining to the property on which the telecommunications antenna and related facility is located, or abandonment or continuous cessation of use for more than 12 months.

(d) Removal of Improvements. Unless a new permit is issued within 180 days thereafter, all improvements installed including their foundations shall be removed from the property and the site restored to its natural pre-construction state within 180 days of permit expiration, revocation or abandonment. Any access road installed shall also be removed and the ground returned to its natural condition unless the property owner establishes to the satisfaction of the Director of Community and Economic Development/Planning Director that these sections of road are necessary to serve some other allowed use of the property that is permitted or is currently present or to provide access to adjoining parcels.

(a) The applicant shall provide notification to the Director of Community and Economic Development/Planning Director upon cessation of operations on the site. The applicant shall remove all obsolete or unused facilities from the site within six months of termination of its lease, cessation of operations, or expiration of its permit, subject to the determination of the Director of Community and Economic Development/Planning Director that the use of the site has ceased for a period of six months. Should the owner fail to effect such removal, the property owner shall be responsible for the removal of the equipment.

(b) A new permit shall be required if the site is to be used again for the same purpose as permitted under the original permit, if a consecutive period of six months has lapsed since cessation of operations.

(c) Any FCC licensed telecommunications carrier that is buying, leasing, or considering a transfer of ownership of an already approved facility shall submit a letter of notification of intent to the Director of Community and Economic Development/Planning Director.

If any section, subsection, sentence, clause or phrase or word of this ordinance is for any reason held to be unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Hayward hereby declares that it would have passed and adopted this ordinance and each and all provisions thereof irrespective of the fact that any one or more of said provisions be declared unconstitutional.