Madera Municipal Code Ch. 9 Wireless Facilities

(A) The city of Madera (the "city") intends this chapter to establish reasonable, uniform and comprehensive standards and procedures for wireless facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the city's territorial boundaries, consistent with and to the extent permitted under federal and California state law. The standards and procedures contained in this chapter are intended to, and should be applied to, consistent with federal and state law, protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless services with the city's local values, which include without limitation the aesthetic character of the city, its neighborhoods and community. This chapter is also intended to reflect and promote the community interest by:

(1) Ensuring that the balance between public and private interest is maintained on a case-by-case basis;

(2) Protecting the city's visual character from potential adverse impacts or visual blight created or exacerbated by wireless communications infrastructure;

(3) Protecting and preserving the city's environmental resources; and

(4) Promoting access to high-quality, advanced wireless services for the city's residents, businesses and visitors.

(B) 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;

(5) Prohibit any collocation or modification that the city may not deny under federal or California 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 California law.

(Ord. 995 C.S., passed 10-19-22)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. All references to codified statutes, regulations or other rules shall be deemed to refer to such statutes, regulations or other rules as they may be amended or superseded.

AMATEUR STATION. The same as defined by the FCC in 47 C.F.R. § 97.3, which defines the term as "a station in an amateur radio service consisting of the apparatus necessary for carrying on radio communications." This term includes amateur radio antennas and related facilities used for amateur radio services.

APPROVAL AUTHORITY. The city official or body responsible for application review and vested with authority to approve or deny such applications. The approval authority for a conditional use permit shall be the Planning Commission. The approval authority for a site plan review shall be the Director.

CPUC. The California Public Utilities Commission established in the California Constitution, Article XII, § 5, or its duly appointed successor agency.

DIRECTOR. The Community Development Director of the City of Madera or the Director's designee.

ELIGIBLE FACILITIES REQUEST. The same as defined in 47 U.S.C. § 1455(a)(2), and as interpreted by the FCC in 47 C.F.R. § 1.6100(b)(3).

FCC. The Federal Communications Commission, as constituted by the Communications Act of 1934, Pub. L: 73-416, 48 Stat. 1064, codified as 47 U.S.C. §§ 151 et seq. or its duly appointed successor agency.

HISTORIC RESOURCE. Any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places, the California Register of Historical Resources or any "historic resource" as listed in Table HC-A of the General Plan. The term includes artifacts, records and remains related to or located within such properties. The term also includes properties with traditional religious and/or cultural importance to any Native American tribe.

OTARD. Any "over-the-air reception device" subject to 47 C.F.R. §§ 1.4000 et seq., which generally includes satellite television dishes and certain fixed wireless antennas not greater than one meter in diameter.

PERSONAL WIRELESS SERVICE FACILITIES. The same as defined in 47 U.S.C. § 332(c)(7)(C)(ii), which defines the term as facilities that provide personal wireless services.

PERSONAL WIRELESS SERVICES. The same as defined in 47 U.S.C. § 332(c)(7)(C)(i), which defines the term as commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services.

PLANNING COMMISSION. The Planning Commission of the city of Madera as established by the Madera Municipal Code.

RF. Radio frequency.

SECTION 6409. Section 6409(a) of the Middle-Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. § 14SS(a).

SHOT CLOCK. The presumptively reasonable time defined by the FCC in which a state or local government must act on an application or request for authorization to place, construct or modify personal wireless service facilities.

SMALL WIRELESS FACILITY. The same as defined by the FCC in 47 C.F.R. § 1.6002(1).

STEALTH. Concealment techniques that make a wireless facility look like something other than a wireless facility. Stealth concealment techniques include, without limitation:

(1) Transmission equipment placed completely within existing or replacement architectural features such that the installation causes no visible change in the underlying support structure; and

(2) New architectural features that mimic or blend with the underlying or surrounding structures in style, proportion and construction quality.

WIRELESS FACILITY. A personal wireless service facility.

(Ord. 995 C.S., passed 10-19-22)

(A) General. This chapter applies to all requests for the city's regulatory authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities on private property (whether owned by a private party or public entity) within the city's territorial and jurisdictional boundaries, unless expressly exempted pursuant to this section.

(B) Wireless facilities on city property. This chapter applies to permit applications for wireless facilities on property or structures owned or controlled by the city; provided, however, that this chapter does not govern whether or under what terms and conditions the city would tease, license or otherwise allow a wireless facility on such property or structures.

(C) Small wireless facilities. Notwithstanding anything in this chapter to the contrary, all small wireless facilities are subject to a permit as specified in a City Council policy, which may be adopted, amended and/or repealed by a resolution of the City Council. All small wireless facilities shall comply with the City Council's policy. If the City Council policy is repeated and not replaced, an application for a small wireless facility shall be processed pursuant to this chapter.

(D) Eligible facilities requests. Notwithstanding anything in this chapter to the contrary, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 are subject to a City Council policy, which may be adopted, amended and/or repealed by a resolution of the City Council. All eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall comply with the City Council's policy. If the City Council policy is repealed and not replaced, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall be processed pursuant to this chapter.

(E) Other exemptions. Notwithstanding anything in this chapter to the contrary, this chapter shall not be applicable to the following:

(1) Wireless facilities operated by the city for public purposes;

(2) Wireless facilities installed completely indoors or within venues and used to extend personal wireless services into a business or the subscriber's private residence, such as a femto cell or indoor distributed antenna system;

(3) OTARD antennas;

(4) Antennas and related transmission equipment used in connection with a duly authorized amateur station; or

(5) Wireless facilities or other transmission equipment owned and operated by CPUC-regulated electric companies for use in connection with electrical power, generation, transmission and distribution facilities subject to CPUC General Order 131-D.

(Ord. 995 C.S., passed 10-19-22)

(A) Site plan review. A site plan review, subject to the Director's prior review and approval, is required for all wireless facilities that are located in preferred locations as described in § 10-9.09 and compliant with all applicable design standards in § 10-9.10.

(B) Conditional use permit. A conditional use permit, subject to the Planning Commission's prior review and approval, is required for all wireless facilities on private property that are located in discouraged locations as described in § 10-9.09, and do not qualify for site plan review, or require an exception under § 10-9.13.

(C) Other permits and regulatory approvals. In addition to any permit or approval required under this chapter, the applicant must obtain all other permits and regulatory approvals (such as compliance with the California Environmental Quality Act or Madera County Airport Land Use Commission requirements) as may be required by any other federal, state or local government agencies, which includes without limitation any other permits and/or approvals issued by other city departments or divisions. Any permit or approval granted under this chapter or deemed granted or deemed approved by law shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or approvals. Furthermore, and to avoid potential confusion, an exemption from the permit requirement under § 10-9.03(E) does not exempt the same wireless facilities from any other permits or approvals required, which includes without limitation any ministerial permits from the city.

(Ord. 995 C.S., passed 10-19-22)

In addition to the requirements in this chapter, the Director may adopt such orders or regulations as the Director deems necessary or appropriate to protect and maintain public health, safety, welfare and/or convenience. All wireless facilities must conform to all applicable orders and regulations issued by the Director, unless the Director, in the Director's discretion, grants a prior written waiver to deviate, in whole or in part, any such order or regulation. The Director shall develop and publish guidelines to implement the waivers authorized by this section.

(Ord. 995 C.S., passed 10-19-22)

(A) Application required. The approval authority shall not approve any requests for authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities except upon a complete and duly filed application consistent with this section and any other written rules or requirements the city or the Director may establish from time to time in any publicly stated format.

(B) Application fee. The applicant shall submit the applicable permit application fee adopted by City Council resolution. If no permit application fee has been adopted, then the applicant must submit a signed written statement that acknowledges that the applicant will be required to submit a deposit estimated by the Director to reimburse the city for its reasonable costs incurred in connection with the application. Should the deposit be inadequate, an additional deposit shall be required. If the deposit exceeds the actual costs, the difference will be returned to the applicant.

(C) Application content. All applications for a permit must include all the information and materials required by the Director for the application. The City Council authorizes the Director to develop, publish and from time-to-time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Director finds necessary, appropriate or useful for processing any application governed under this chapter. All such requirements must be in written form and publicly stated to provide applicants with prior notice. Notwithstanding anything in this chapter to the contrary, all applications shall, at a minimum, require the applicant to demonstrate that the proposed project will be in planned compliance with all applicable health and safety laws, regulations or other rules, which includes without limitation all building codes, electric codes and all FCC rules for human exposure to RF emissions.

(D) Application submittal. Unless the Director establishes an alternative submittal procedure pursuant to § 10-9.05, all applications must be submitted to the city at a pre-scheduled appointment with the department. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The department shall use reasonable efforts to provide the applicant with an appointment within five working days after the department receives 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.

(E) Optional pre-submittal conference. The city shall provide prospective applicants with the opportunity to schedule and attend a pre-submittal conference with city staff. The city encourages pre-submittal conferences for all proposed projects that require a conditional use permit. 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; any latent issues in connection with the proposed or existing wireless facility, such as compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments and/or divisions responsible for application review; and application completeness issues. 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 staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The city shall use reasonable efforts to provide the applicant with an appointment within five 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.

(F) Optional community meetings. The city encourages, but does not require, applicants to schedule, notice, arrange, and attend a voluntary pre-submittal community meeting with all interested members of the public for applications that require a conditional use permit. This voluntary community meeting does not cause the shot clock to begin and is intended to give applicants the opportunity to hear from members of the public regarding the proposed deployment. Applicants should schedule any voluntary community meetings at times and in locations that are conducive to maximizing public participation. Applicants are encouraged (but not required) to bring any draft applications, plans, maps, presentations or other materials to facilitate the public's understanding of the applicant's proposal. Applicants are also encouraged (but not required) to maintain minutes or a comment log of the community meeting. The City seeks to encourage dialogue that may allow applicants to address areas of concern. Community meetings may be conducted before or after submittal.

(G) 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 department within 90 calendar days after the department deems the application incomplete in a written notice to the applicant. The Director, in the Director's discretion, may grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the ninetieth day that shows good cause to grant the extension. Good cause for an extension shall include, without limitation, delays due to circumstances outside the applicant's reasonable control.

(Ord. 995 C.S., passed 10-19-22)

(A) Public hearing notice. Notice of public hearing shall be given in accordance with § 10-3.1306 of this chapter for any conditional use permit application.

(B) Decision notices. Within five calendar days after the approval authority acts on an application governed under this chapter or before the shot clock expires (whichever occurs first), the Director shall send a written notice to the applicant. If the approval authority denies the application (with or without prejudice), the written notice to the applicant must contain the reasons for the denial.

(C) All decision notices shall include instructions for how and when to file an appeal.

(Ord. 995 C.S., passed 10-19-22)

(A) Required findings. The approval authority may approve wireless facility applications only when the approval authority makes all the following findings:

(1) The proposed wireless facility is in a preferred location; or the proposed wireless facility is in a discouraged location and the applicant has demonstrated through a meaningful comparative analysis that no more preferred location or support structure would be technically feasible and potentially available;

(2) The proposed wireless facility complies with all applicable development standards in this chapter and any other applicable findings required for the approval, such as § 10-3.1301 of this chapter (conditional use permits) or § 10-3.4.0106 of this chapter (site plan review);

(3) The applicant has provided a signed statement that indicates its willingness to allow other carriers and site operators to collocate transmission equipment with the proposed wireless facility whenever technically feasible and aesthetically desirable in accordance with applicable provisions in this chapter; and

(4) The applicant has demonstrated that the proposed wireless facility will comply with all applicable FCC regulations and guidelines for human exposure to RF emissions and will not, either individually or cumulatively with other transmitters in the vicinity, result in RF exposures that exceed the FCC's maximum permissible exposure level for the general population.

(B) Conditional approvals; denials without prejudice. Subject to any applicable federal or state laws, nothing in this chapter is intended to limit the approval authority's ability to conditionally approve or deny without prejudice any application governed under this chapter as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in the general plan and any applicable specific plan, the Madera Municipal Code, or this chapter.

(C) Appeals. Within ten days after the approval authority approves or denies any application under this chapter, any interested person may file an appeal in accordance with the provisions in § 10-3.1309 of this chapter for use permits or §§ 10-3.4.0116 and 10-3.4.0117 of this chapter for site plan review; provided, however, that:

(1) The notice provisions in this chapter shall control over those in § 10-3.1309 of this chapter; and

(2) Appeals from an approval shall not be permitted when based solely on the environmental effects from RF emissions that are compliant with applicable FCC regulations and guidelines.

(Ord. 995 C.S., passed 10-19-22)

(A) Locations. To assist applicants, staff and the approval authority understand and respond to the community's aesthetic preferences and values, this division describes preferred and discouraged locations for wireless facilities.

(1) Preferred locations. All applicants must, to the extent technically feasible and potentially available, propose new facilities in a preferred location. No alternative sites analysis is required for new stealth facilities proposed in any preferred location. For all other new facilities, the approval authority shall consider whether any more preferred location would be technically feasible or potentially available. The following locations are all "preferred" and ordered from most preferred to least preferred:

(a) Industrial zones;

(b) Commercial zones;

(c) Other non-residential zones; and

(d) Public facilities zone when not directly adjacent to residentially zoned parcels.

(2) Discouraged locations. Applicants shall not propose to install wireless facilities in a discouraged location unless no alternative site in a preferred location would be technically feasible. If all preferred locations are technically infeasible, the applicant shall use the least-discouraged location. The following locations are discouraged, and ordered from most discouraged to least discouraged:

(a) Historic resource zones and properties;

(b) Public facilities zone when directly adjacent to residentially zoned parcels; and

(c) Residential zones.

(B) Support structures. To assist applicants, staff and the approval authority understand and respond to the community's aesthetic preferences and values, and to mitigate the impact of wireless infrastructure deployment, the city requires wireless facilities to be installed on support structures, ordered from most preferred to least preferred, as follows:

(1) Existing structures with existing wireless facilities;

(2) Existing rooftops;

(3) Existing building façades, signs, water tank/towers, field lights, or other non-tower structures; and

(4) New freestanding structures outside the public rights-of-way.

(5) To the extent that a proposed support structure is not included in this list, the Director may, in the Director's discretion, determine the level of preference for such structure consistent with the goals and purpose of this division.

(Ord. 995 C.S., passed 10-19-22)

(A) Concealment. All wireless facilities must be concealed to the maximum extent feasible with design elements and techniques that mimic or blend with the underlying support structure, surrounding environment and adjacent uses.

(B) Overall height. All wireless facilities must be compliant with maximum overall height limits applicable to structures on the underlying parcel; provided, however, that a stealth wireless facility may exceed the applicable height limit by not more than ten feet.

(C) Setbacks. All wireless facilities must be compliant with all setback requirements applicable to structures on the underlying parcel.

(D) Fall zone. All freestanding towers outside the public rights-of-way must be setback from habitable structures approved for residential occupancy by a distance equal to the tower height. The approval authority may waive the setback requirement for freestanding towers that meet Class 3 structural standards for critical infrastructure as defined in the most current revision of the ANSI/TIA-222 Structural Standard for Antenna Supporting Structures, Antennas and Small Wind Turbine Support Structures.

(E) Noise. All wireless facilities must be compliant with all applicable noise regulations, which include, without limitation, any noise regulations in the Madera Municipal Code. The approval authority may require the applicant to incorporate appropriate noise-baffling materials and/or noise-mitigation strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations.

(F) Landscaping. All wireless facilities proposed to be placed in a landscaped area must include landscape features (which may include, without limitation, trees, shrubs and ground cover) and a landscape maintenance plan. The approval authority may require additional landscape features to screen the wireless facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the concealment required under this section. All plants proposed or required must be native and/or drought resistant.

(G) Security measures. To prevent unauthorized access, theft, vandalism, attractive nuisance or other hazards, reasonable and appropriate security measures, such as fences, walls and anti-climbing devices, may be approved. Security measures shall be designed and implemented in a manner that enhances or contributes to the overall concealment, and the approval authority may condition approval on additional concealment elements to mitigate any aesthetic impacts, which may include, without limitation, additional landscape features. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures.

(H) Secondary power sources. The approval authority may approve secondary or backup power sources and/or generators on a case-by-case basis. The approval authority shall not approve any permanent diesel generators or other similarly noisy or noxious generators in or within 200 feet from any residence; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators.

(I) Lights. Wireless facilities may not include exterior lights other than as may be required under Federal Aviation Administration, FCC, other applicable federal or state governmental regulations. All exterior lights permitted or required to be installed must be installed in locations and within enclosures that mitigates illumination impacts on other properties to the maximum extent feasible. Any lights associated with the electronic equipment shall be appropriately shielded from public view. Any light beacons or lightning arresters shall be included in the overall height calculation.

(J) Signage; decals; advertisements. All wireless facilities must include signage that accurately identifies the equipment owner/operator, the owner/operator's site name or identification number and a toll-free number to the owner/operator's network operations center. Wireless facilities may not bear any other signage, decals or advertisements unless expressly approved by the approval authority, required by law or recommended under FCC or other federal governmental agencies for compliance with RF emissions regulations.

(K) Future expansion. To the extent feasible and aesthetically desirable, all new wireless facilities should be designed and sited in a manner that accommodates potential future collocations and other expansions that can be integrated into the proposed wireless facility or its associated structures with no or negligible visual changes to the outward appearance. The approval authority may waive the requirements in this division when the approval authority determines future expansions at a proposed wireless facility would be aesthetically undesirable.

(L) Utilities. All cables and connectors for telephone, primary electric and other similar utilities must be routed underground to the extent feasible in conduits large enough to accommodate future collocated wireless facilities. To the extent feasible, undergrounded cables and wires must transition directly into the pole base without any external doghouse. Meters, panels, disconnect switches and other associated improvements must be placed in inconspicuous locations to the extent possible. The approval authority shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost. Microwave or other wireless backhaul is discouraged when it would involve a separate and unconcealed antenna.

(M) Parking; access. Any equipment or improvements constructed or installed in connection with any wireless facilities must not reduce any parking spaces below the minimum requirement for the subject property. Whenever feasible, wireless facilities should use existing parking and access rather than construct new parking or access improvements. Any new parking or access improvements should be the minimum size necessary to reasonably accommodate the proposed use.

(N) Compliance with laws. All wireless facilities must be designed and sited in compliance with all applicable federal, state and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, Americans with Disabilities Act, City of Madera General Plan and any applicable specific plan, the Madera Municipal Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.

(O) Towers and freestanding wireless facilities. In addition to all other design requirements in this section, the following provisions shall be applied to an application for a tower or other freestanding wireless facility:

(1) Tower-mounted equipment. All tower-mounted equipment must be mounted as close to the vertical support structure as possible to reduce its overall visual profile. Applicants must mount non-antenna, tower-mounted equipment (including, but not limited to, remote radio units/heads, surge suppressors and utility demarcation boxes) directly behind the antennas to the maximum extent feasible. All tower-mounted equipment, cables and hardware must be painted with flat/neutral colors subject to the approval authority's prior approval.

(2) Ground-mounted equipment. All ground-mounted equipment must either be concealed underground, or concealed within an existing or new structure, or other enclosure(s) subject to the approval authority's prior approval. The approval authority may require additional concealment elements as the approval authority finds necessary or appropriate to blend the ground-mounted equipment, enclosure and/or other improvements into the natural and/or built environment.

(3) Monopines. In addition to all other design requirements in this section, the following provisions shall be applied to an application for a monopine:

(a) Shape and branching. Monopines shall be gradually tapered from bottom to top to resemble the natural conical pine-tree shape, with shorter branches at the top and wider branches at the bottom. All monopines shall include a "crown" or "topper" installed above the monopole to create a natural point at the top. Branches shall begin at no greater than 15 feet above ground level and maintain at least 3.5 branches per vertical foot when averaged between the bottom-most branch and the highest point on the monopole (excluding any "crown" or "topper" installed above the monopole).

(b) Overall height. To maintain a natural appearance, a monopine may not exceed more than ten feet above the average height of mature natural trees within the vicinity. If the applicant plants new natural trees around the proposed monopine, the approval authority shall consider the future mature height of such trees when evaluating compliance with this standard.

(c) Bark cladding. The entire tower above any fence line shall be fitted with faux-pine bark cladding, painted or colored with browns or other appropriate earth tones to mimic natural pine bark.

(d) Equipment concealment. All antennas, accessory equipment, cross arms, hardware, cables and other attachments to the monopine must be painted or colored with flat greens, browns or other appropriate earth tones to blend into the faux pine branches. All antennas, remote radio units, tower-mounted amplifiers and other similar equipment larger than one cubic foot shall be fitted with a faux-pine "sock" with faux-pine needles. No tower-mounted equipment shall be permitted to protrude beyond the branch canopy such that it would materially alter the tapered pine shape.

(e) Material selection and approval. All materials and finishes used to conceal the monopine shall be subject to prior approval by the department. Applicants shall use only high-quality materials to conceal the wireless facility. The applicant shall use color-extruded plastics for elements such as the faux-pine needles and faux-bark cladding to prolong the like-new appearance and reduce fading caused by exposure to the sun and other weather conditions.

(P) Building-mounted wireless facilities. In addition to all other design requirements in this section, the following provisions shall be applied to an application for a wireless facility installed on a building rooftop or façade:

(1) Architectural integration. All applicants should, to the extent feasible, propose new non-tower wireless facilities that are completely concealed and architecturally integrated into the existing façade or rooftop features with no visible impacts from any publicly accessible areas at ground level (examples include, but are not limited to, antennas behind existing parapet walls or façades replaced with RF-transparent material and finished to mimic the replaced materials). Alternatively, when integration with existing building features is not feasible, the applicant should propose completely concealed new structures or appurtenances designed to mimic the support structure's original architecture and proportions (examples include, but are not limited to, cupolas, steeples, chimneys and water tanks). Facilities must be located behind existing parapet walls or other existing screening elements to the maximum extent feasible.

(2) Rooftop wireless facilities. All rooftop-mounted equipment must be screened from public view with concealment measures that match the underlying structure in proportion, quality, architectural style and finish. The approval authority may approve unscreened rooftop equipment only when it expressly finds that such equipment is effectively concealed due to its low height and/or setback from the roofline.

(3) Façade-mounted wireless facilities. When wireless facilities cannot be placed behind existing parapet walls or other existing screening elements, the approval authority may approve façade-mounted equipment in accordance with this division. All façade-mounted equipment must be concealed behind screen walls and mounted as flush to the façade as practicable. The approval authority may not approve "pop-out" screen boxes unless the design is architecturally consistent with the original building or support structure. Except in industrial districts, the approval authority may not approve any exposed façade-mounted antennas, including but not limited to exposed antennas painted to match the façade. To the extent feasible, façade-mounted equipment must be installed on the façade(s) along the building frontage that is the least prominent or publicly visible.

(Q) Administrative design guidelines. The Director may develop, and from time to time amend, design guidelines consistent with the generally applicable design regulations to clarify the aesthetic and public safety goals and standards in this chapter for city staff, applicants and the public. The design guidelines shall provide more detailed standards to implement the general principals articulated in this chapter and may include specific standards for particular wireless facilities or site locations but shall not unreasonably discriminate between functionally equivalent service providers. The design guidelines, and any subsequent amendments, shall not be effective unless approved by a resolution adopted by the City Council. If a conflict arises between the development standards specified in this chapter and the design guidelines, the development standards shall control.

(Ord. 995 C.S., passed 10-19-22)

(A) Standard conditions. Except as may be authorized in division (B) below, all wireless facilities approved under this chapter or deemed approved by the operation of law shall be automatically subject to the conditions in this division (A) and these conditions shall be deemed to be incorporated by reference to any permit approved or deemed approved by law.

(1) Permit term; approval applies to land. This permit will automatically expire ten years and one day from its issuance unless Cal. Gov't Code § 65964(b) authorizes the city to establish a shorter term for public safety or substantial land use reasons. Any other permits or approvals issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law. This permit shall run with the land and shall be valid for the term specified in these conditions of approval. No change in ownership of the wireless facility, the site, or the subject property shall affect the permit term. This permit may not be transferred to another site or property.

(2) Permit renewal. The permittee may apply for permit renewal not more than one year before this permit expires. The permittee must demonstrate that the subject wireless facility complies with all the conditions of approval associated with this permit and all applicable provisions in this chapter that exist at the time the decision to renew or not renew is rendered. The Director may modify or amend the conditions on a case-by-case basis as may be necessary or appropriate to ensure compliance with this chapter or other applicable law. Upon renewal, this permit will automatically expire ten years and one day from its issuance.

(3) Approved plans. Any final construction plans shall incorporate the permit, together with all conditions of approval and the photo simulations associated with the permit (collectively, the "approved plans"). The permittee must construct, install and operate the wireless facility in substantial compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, shall be subject to the Director's prior review and approval. After the Director receives a written request to approve an alteration, modification or other change to the approved plans, the Director may refer the request to the approval authority if the Director finds that it substantially deviates from the approved plans or implicates a significant or substantial land-use concern.

(4) CPUC G0-159A Certification. Within 15 business days after the city issues this permit, the permittee shall serve copies of California Public Utility Commission notification letters required by CPUC General Order No. 159A to the City Clerk, Director and City Manager.

(5) Build-out period. This permit will automatically expire 12 months from the approval date (the "build-out period") 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, support structure or the wireless facility and/or its use. The permittee may request in writing, and the city may grant in writing, one six-month extension if the permittee submits substantial and reliable written evidence demonstrating justifiable cause for such extension. If the build-out period and any extension finally expire, this permit shall be automatically void but the permittee may resubmit a complete application, including all application fees, for the same or substantially similar project.

(6) Post-installation certification. Within 60 calendar days after the permittee commences full, unattended operations of a wireless facility approved under this chapter or deemed-approved by law, the permittee shall provide the Director with documentation reasonably acceptable to the Director that the wireless facility has been installed and/or constructed in strict compliance with the approved construction drawings and photo simulations. Such documentation shall include without limitation as-built drawings, GIS data and site photographs.

(7) Site maintenance. 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 construction drawings and all conditions in this permit. At all times, the permittee shall keep the site area free from all litter and debris. The permittee shall regularly inspect the wireless facility to determine whether any maintenance is needed. The permittee, at no cost to the city, shall remove and remediate any graffiti or other vandalism on the wireless facility within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.

(8) 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 permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the Director (such as, without limitation, those requirements affixed to a building permit). 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. No failure or omission by the city to timely notice, prompt or enforce compliance with any applicable provision in the Madera Municipal Code, this chapter, any permit, any permit condition or any applicable laws, shall be deemed to relieve, waive or lessen the permittee's obligation to comply in all respects with same.

(9) Adverse impacts on other properties. The permittee shall use all reasonable efforts to avoid any and all unreasonable, undue or unnecessary adverse impacts on nearby properties that may arise from the permittees or its authorized personnel's construction, installation, operation, modification, maintenance, repair, removal and/or other activities on or about the site and/or wireless facility. 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 work hours authorized by the Madera Municipal Code. 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 or other state or federal government agency or official with authority to declare an emergency within the city. The Director may issue a stop work order for any activities that violates this condition in whole or in part. If the Director finds good cause to believe that ambient noise from the wireless facility or related equipment violates applicable provisions in the Madera Municipal Code, the Director, in addition to any other actions or remedies authorized by the permit, the Madera Municipal Code or other applicable laws, may require the permittee to commission a noise study by a qualified professional to evaluate the wireless facility's compliance.

(10) Inspections; emergencies. The permittee expressly acknowledges and agrees that, upon reasonable prior notice to the permittee, the city's officers, officials, staff, agents, contractors or other designees may enter onto the site and inspect the wireless facility and related equipment and/or improvements to ensure compliance with this permit and all associated conditions. Notwithstanding the prior sentence, the city's officers, officials, staff, agents, contractors or other designees 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, if present, may observe the city's officers, officials, staff or other designees while any such inspection or emergency access occurs.

(11) Contact information. At all times relevant to this permit, the permittee shall keep on file with the Director basic contact and site information. This information shall include, but is not limited to, the following: (A) the name, physical address, notice address (if different), direct telephone number and email address for (i) the permittee and, if different from the permittee, the (ii) site operator, (ii) equipment owner, (iii) site manager and (iv) agent for service of process; (B) the wireless facility's site identification number and/or name used by the permittee and, to the extent applicable, site operator, equipment owner and site manager; and (C) a toll-free telephone number to the wireless facility's network operations center where a live person with power-down control over the wireless facility is available 24 hours-per-day, seven days-per-week. Within ten business days after a written request by the city, the permittee shall furnish the Director with an updated form that includes all the most-current information described in this condition.

(12) 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 the city's boards, commissions, agents, officers, officials, employees and volunteers (collectively, the "indemnitees") from any and all (A) 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 indemnitees to challenge, attack, seek to modify, set aside, void or annul the city's approval of this permit, and (B) 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 permit 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 (if applicable) and shall reasonably cooperate in the defense. 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 the 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 permit, and that such indemnification obligations will survive the expiration, revocation or other termination of this permit.

(13) Removal bond. Before the city issues any permits required to commence construction in connection with this permit, the permittee shall post a bond issued by a surety and in a form acceptable to the 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 or similar infrastructure 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, the 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. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.

(14) Permit revocation. Notwithstanding any revocation procedures in this Title X, any permit granted under this chapter or deemed approved by the operation of law may be revoked in accordance with the provisions and procedures in this condition. The Director may initiate revocation proceedings when the Director has information that the facility may not be in compliance with all applicable laws, which includes without limitation, any permit in connection with the facility and any associated conditions with such permit(s). A permit granted under this chapter or deemed approved by the operation of law may be revoked only by the City Council after a duly notice public hearing. Before any public hearing to revoke a permit granted under this chapter or deemed approved by the operation of law, the Director must issue a written notice to the permittee that specifies (A) the facility; (B) the violation(s) to be corrected; (C) the timeframe in which the permittee must correct such violation(s); and (D) that, in addition to all other rights and remedies the city may pursue, the city may initiate revocation proceedings for failure to correct such violation(s). The City Council may revoke a permit when it finds substantial evidence in the written record to show that the facility is not in compliance with any applicable laws, which includes without limitation, any permit in connection with the facility and any associated conditions with such permit(s). Any decision by the City Council to revoke or not revoke a permit shall be final and not subject to any further appeals. Within five business days after the City Council adopts a resolution to revoke a permit, the Director shall provide the permittee with a written notice that specifies the revocation and the reasons for such revocation.

(15) Record retention. Throughout the permit term, the permittee must maintain a complete and accurate copy of the written administrative record, which includes without limitation the permit application, this permit, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval, any ministerial permits or approvals issued in connection with this approval and any records, memoranda, documents, papers and other correspondence entered into the public record in connection with the permit (collectively, "records"). If the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved by inspecting the missing records will be construed against the permittee. The permittee shall protect all records from damage from fires, floods and other hazards that may cause deterioration. The permittee may keep records in an electronic format; 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. The requirements in this condition shall not be construed to create any obligation to create or prepare any records not otherwise required to be created or prepared by other applicable laws. Compliance with the requirements in this condition shall not excuse the permittee from any other similar record-retention obligations under applicable law.

(16) Abandoned facilities. The wireless facility authorized under this permit shall be deemed abandoned if not operated for any continuous 12-month period. Within 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 Madera Municipal Code. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within said 90-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 and shall reimburse the city for all such costs 30 calendar days after a written demand for reimbursement and reasonable documentation to support such costs.

(17) Landscaping. The permittee shall replace any landscape features damaged or displaced by the construction, installation, operation, maintenance or other work performed by the permittee or at the permittee's direction on or about the site. If any trees are damaged or displaced, the permittee shall hire and pay for a licensed arborist to select plant and maintain replacement landscaping in an appropriate location for the species. Any replacement tree must be substantially the same size as the damaged tree or as otherwise approved by the city. The permittee shall be responsible to maintain any replacement landscape features for a three-year period after such landscaping has been installed. Notwithstanding anything in this condition to the contrary, the Director may agree in a written agreement signed by the permittee to accept an annual in-lieu fee to perform the maintenance work on the permittee's behalf.

(18) Cost reimbursement. The permittee acknowledges and agrees that:

(a) The permittee's request for authorization to construct, install and/or operate the wireless facility will cause the city to incur costs and expenses;

(b) The permittee shall be responsible to reimburse the city for all costs incurred in connection with the permit, which includes without limitation costs related to application review, permit issuance, site inspection and any other costs reasonably related to or caused by the request for authorization to construct, install and/or operate the wireless facility;

(c) Any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse the city for all such costs 30 calendar days after a written demand for reimbursement and reasonable documentation to support such costs; and

(d) The city shall have the right to withhold any permits or other approvals in connection with the wireless facility until and unless any outstanding costs have been reimbursed to the city by the permittee.

(19) Successors and assigns. The conditions, covenants, promises and terms contained in this permit will bind and inure to the benefit of the city and permittee and their respective successors and assigns.

(20) Truthful and accurate statements. The permittee acknowledges that the city's approval relies on the written and/or oral statements by permittee and/or persons authorized to act on permittee's behalf. In any matter before the city in connection with the permit or the wireless facility, neither the permittee nor any person authorized to act on permittee's behalf shall, in any written or oral statement, intentionally provide material factual information that is incorrect or misleading or intentionally omit any material information necessary to prevent any material factual statement from being incorrect or misleading.

(21) City's standing reserved. The city's grant or grant by operation of law of a permit pursuant to this chapter does not waive, and shall not be construed to waive, any standing by the city to challenge any: (A) FCC rules or regulations that interpret the Telecommunications Act and/or Section 6409 of the Spectrum Act; or (B) any permit issued pursuant to this chapter.

(22) Severable conditions. If any provision in these conditions or such provision's application to any person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable:

(a) Such provision or its application to such person, entity or circumstance will be deemed severed from this permit;

(b) All other provisions in this permit or their application to any person, entity or circumstance will not be affected; and

(c) All other provisions in this permit or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by law.

(B) Modified conditions. The City Council authorizes the Director to modify, add or remove conditions to any permit as the Director deems necessary or appropriate to:

(1) Protect and/or promote the public health, safety and welfare;

(2) Tailor the standard conditions in division (A) to the particular facts and circumstances associated with the deployment; and/or

(3) Memorialize any changes to the proposed deployment needed for compliance with this chapter, generally applicable health and safety requirements and/or any other applicable laws.

(Ord. 995 C.S., passed 10-19-22)

(A) Any nonconforming wireless facilities in existence at the time this chapter becomes effective must be brought into conformance with this chapter in accordance with the amortization schedule in this chapter. As used in this section, the "fair market value" will be the construction costs listed on the building permit or application for the subject wireless facility and the "minimum years" allowed will be measured from the date on which this chapter becomes effective.

(B) The Director may grant a written extension to a date certain when the wireless facility owner shows (1) a good faith effort to cure non-conformance; (2) the application of this section would violate applicable laws; or (3) extreme economic hardship would result from strict compliance with the amortization schedule. Any extension must be the minimum time period necessary to avoid such extreme economic hardship. The Director may not grant any permanent exemption from this section.

(C) Nothing in this section is intended to limit any permit term to less than ten years for any permit granted on or after January 1, 2007. In the event that the amortization required in this section would reduce the permit term to less than ten years for any permit granted on or after January 1, 2007, then the minimum years allowed will be automatically extended by the difference between ten years and the number of years since the city granted such permit. Nothing in this section is intended or may be applied to prohibit any collocation or modification covered under 47 U.S.C. § 1455(a) on the basis that the subject wireless facility is a legal nonconforming wireless facility.

(Ord. 995 C.S., passed 10-19-22)

(A) Preface. The provisions in this section establish a procedure by which the city may grant an exception to the standards in this chapter but only to the extent necessary to avoid conflict with applicable federal or state law. When the applicant requests an exception, the approval authority shall consider the findings in division (B) in addition to the findings required under § 10-9.08. Each exception is specific to the facts and circumstances in connection with each application. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance.

(B) Findings for an exception. The approval authority may grant an exception to any provision or requirement in this chapter only if the approval authority finds that:

(1) A denial based on the application's noncompliance with a specific provision or requirement would violate federal law, state law or both; or

(2) A provision in this chapter, as applied to the applicant, would violate any rights or privileges conferred on the applicant by federal or state law.

(C) Scope of exception. If the approval authority finds that an exception should be granted, the exception shall be narrowly tailored so that the exception deviates from this chapter to least extent necessary for compliance with federal or state law.

(D) Burden of proof. The applicant shall have the burden to prove to the approval authority that an exception should be granted pursuant to this section. The standard of evidence shall be the same as required by applicable federal or state law for the issue raised in the applicant's request for an exception.

(Ord. 995 C.S., passed 10-19-22)

(A) Authorization. The City Council authorizes the Director to, in the Director's discretion, select and retain an independent consultant with specialized training, experience and/or expertise in telecommunications issues satisfactory to the Director in connection any permit application. The 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: (1) permit application completeness and/or accuracy; (2) pre-construction planned compliance with applicable regulations for human exposure to RF emissions; (3) post-construction actual compliance with applicable regulations for human exposure to RF emissions; (4) whether and to what extent a proposed project will comply with applicable laws; (5) 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 (6) any other issue identified by the Director that requires expert or specialized knowledge. The 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.

(B) Cost reimbursement. Subject to applicable laws, the applicant shall be responsible for the reasonable costs actually incurred by the city in connection with a consultant's review, which may include, without limitation, costs incurred by the consultant to attend and participate in any meetings or hearings related to the application. Within a reasonable time after notice from the Director, the applicant shall deposit funds in an amount equal to the estimated costs for the consultant's services, as determined by the Director. The funds shall be applied to the consultant's invoices as such invoices are approved by the Director. If the deposit exceeds the total costs for the consultant's services, the Director shall promptly return any unused funds to the applicant after the wireless facility has been installed and passes a final inspection. If the reasonable costs for the consultant's services exceed the deposit, the Director shall invoice the applicant for the balance. The city shall not issue any building permit or other construction permit to any applicant with any unpaid invoices.

(Ord. 995 C.S., passed 10-19-22)

Any use or condition caused or permitted to exist in violation of any provision of this chapter shall be and hereby is declared a public nuisance and may be subject to administrative citations as set forth in Title I, Chapter 9 of the Municipal Code, abatement pursuant to §§ 10-3.1601 et seq. of this chapter, Cal. Code of Civil Procedure § 731, or any other remedy available to the city.

(Ord. 995 C.S., passed 10-19-22)

To the extent, that any provisions in the Madera Municipal Code § 10.3.419 are inconsistent with this chapter, this chapter shall prevail.

(Ord. 995 C.S., passed 10-19-22)

TABLE OF SPECIAL ORDINANCES

Table

I. TABLE OF SPECIAL ORDINANCES

TABLE I: TABLE OF SPECIAL ORDINANCES

References to California Codes

References to 1961 Code

References to Ordinances

References to Resolutions

REFERENCES TO CALIFORNIA CODES

Business and Professions Code

Education Code

Elections Code

Food and Agriculture Code

Penal Code

Public Resources Code

Revenue and Taxation Code

Vehicle Code

REFERENCES TO 1961 CODE