Modesto Municipal Code Art. 4 Wireless Telecommunication Facilities

(a) The purpose of this chapter is to provide for wireless telecommunication ("telecom") facilities on public and private property consistent with federal and State law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes and neighborhoods, protecting scenic views, and otherwise mitigating the impacts of such facilities while ensuring adequate service to the community.

(b) It is the objective of the City that all telecom facilities be as unobtrusive as possible and that the number of freestanding telecom facilities be minimized. The standards and policies established by this article are intended to ensure that telecom facilities within the City are developed in harmony with the surrounding environment through regulation of location and design.

(c) The provisions of this chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecom services. This chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecom services.

For the purposes of this article, certain terms shall have meanings as follows:

(a) "Antenna" means a device used to transmit and/or receive radio or electromagnetic waves between Earth and/or satellite-based systems, including without limitation reflecting discs, panels, microwave dishes, whip antennas, direction and non-direction antennas consisting of one (1) or more wires or elements, multiple antenna configurations, or other similar electromagnetic wave transmission and/reception devices.

(b) "Antenna array" shall mean two (2) or more antennas having active elements extending in one (1) or more directions, and directional antennas mounted upon and rotated through a vertical mast or tower interconnecting the beam and antenna support, all of which elements are deemed to be part of the antenna.

(c) "Camouflage" or "camouflaged facility" means a telecom facility in which the antenna, monopole, uni-pole, and/or tower, and sometimes the support equipment, are hidden from view, or effectively disguised as may reasonably be determined by the Director or Board as applicable, in a false tree, monument, cupola, or other concealing structure which either mimics, or which also serves as, a natural or architectural feature in a compatible environment. Concealing telecom facilities which do not mimic or appear as a natural or architectural feature to the average observer are not within the meaning of this definition.

(d) "Co-location" means an arrangement whereby multiple telecom facilities owned or operated by different telecom operators share the same structure or site.

(e) "FCC" means the Federal Communications Commission.

(f) "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal, costs and technological factors.

(g) "Lattice tower" or "tower" means an open framework freestanding structure used to support one (1) or more antennas, typically with three (3) or four (4) support legs on main vertical load-bearing members.

(h) "Monopole" means a single freestanding pole used to act as or support an exposed antenna or antenna arrays.

(i) "Non-Residential Use" includes uses such as churches, schools, residential care facilities that are not a residential use but may be allowed in a residential zone typically with a conditional use permit.

(j) "Operator" or "telecom operator" means any person, firm, corporation, company, or other entity that directly or indirectly owns, leases, runs, manages, or otherwise controls a telecom facility or facilities within the City.

(k) "Radio Frequency" means electromagnetic waves in the frequency range of three hundred (300) kHz (three hundred thousand (300,000) cycles per second) to three hundred (300) Ghz (three hundred (300) billion cycles per second).

(l) "Radome" means a visually opaque, radio frequency transparent material which may be flat or cylindrical in design, and is used to visually hide antennas.

(m) "Support equipment" means the physical, electrical and/or electronic equipment included within a telecom facility used to house, power, and/or process signals from or to the facility's antenna or antennas.

(n) "Structure" means any structure consistent with the definition provided in Section 10-2.191 but focusing on a structure that can be used for a telecom facility such as a monopole, uni-pole or tower, buildings, steeples, clock towers, park playfield lighting standards, water tanks, and signs.

(o) "Telecommunication(s) facility, telecom facility, wireless telecommunications facility," or simply "facility" means an installation that sends and/or receives wireless radio frequency signals or electromagnetic waves, including, but not limited to, directional, omni-directional and parabolic antennas, structures or towers to support receiving and/or transmitting devices, supporting equipment and structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios/telephones and their associated transmitting antennas.

(p) "Uni-pole" is a monopole that does not have antenna elements other than the pole itself or the antenna elements are concealed inside a radome of the same diameter as the pole, or exceeding the pole diameter by no greater than six (6) inches.

(q) "Utility tower" shall mean an open framework structure or steel pole used to support electric transmission facilities (see Lattice Tower).

These regulations are applicable to telecom facilities providing voice and/or data transmission such as, but not limited to, mobile telephone services, fixed microwave services, and mobile data services.

(a) Exempt facilities. Amateur radio antennas, antennas used solely for the purpose of receiving local broadcast stations, and satellite dish antennas of one (1) meter in diameter or smaller and City owned/operated communication facilities, radio and television broadcasting facilities, are exempt from the provisions of this chapter.

(a) Facility Type Priorities. When reviewing proposed facility types for telecom facilities the Community and Economic Development Director (Director) or Board of Zoning Adjustment (Board), as applicable, shall utilize the following priority order provided in Table 3.4-1:

Priority Table 3.4-1 - Facility Type Priorities

(a) By Zoning Districts. Telecom facilities shall be allowed in the residential, office, commercial, and industrial zoning districts subject to the review process as provided in Table 3.4-2. Telecom facilities on public buildings and public property are provided for in subsection (b) below:

Table 3.4-2 - Telecom Facility Requirement

(b) On Public Buildings and Public Property. All telecom facilities that are camouflaged are permitted on public buildings and public property. Non-camouflaged telecom facilities that are co-located on an existing structure may be approved by the Director pursuant to development plan review. A conditional use permit as approved by the Board is required for a new non-camouflaged uni-pole or monopole.

(c) Replacement Provisions. Replacement of an existing telecom facility with a new similar facility may be permitted as determined by the Director.

(Amended by Ord. No. 3618-C.S., § 2(Exh. A), effective 6-25-15)

(a) Fall Zone Setbacks. All new monopole, uni-pole, lattice tower, or any other freestanding or guyed tower telecom facilities shall maintain a setback from any residentially zoned property that is at least one hundred ten (110) percent of the maximum height of the facility, including any Antenna or Antenna Array attached thereto. All new telecom facilities shall also meet the minimum setback requirements of the underlying zone. In approving such telecom facilities, the Director or Board, as applicable, shall consider maximizing adjacent setbacks from streets and residential properties to minimize the visual obtrusiveness of telecom facilities.

(b) Separation Requirement. Except on public buildings and public property, all non-camouflaged monopole, uni-pole, or tower telecom facilities shall maintain a minimum one thousand (1,000) feet separation from all other non-camouflaged monopole, uni-pole, or tower telecom facilities. Consideration for a separation of less than one thousand (1,000) feet for non-camouflaged monopole, uni-pole, or tower would be pursuant to Section 10-3.407(e).

(c) Height. In general, for a given location, the facility shall be at the lowest possible height consistent with the radio frequency coverage requirements of the applicant, which shall be disclosed to the City as prescribed by the Director.

(1) Maximum Height. The maximum height limits are as set forth in Tables 3.4-3. Requests for Facilities exceeding the height limits set forth in Tables 3.4-3 shall be made as a variance, and subject to the findings for a variance for Telecom Facilities provided in Municipal Code Section 10-3.407(d).

(2) Roof Mounted Facilities. For roof mounted facilities, antennas and support structures shall not exceed the allowable height limit for the zoning district in which it is located by more than ten (10) feet or exceed the primary roof parapet height by more than six (6) feet, whichever is less.

Table 3.4-3—Telecom Facility Maximum Allowed Height (measured in feet)

(d) Projection.

(1) Building Mounted Antennas. The antenna and mountings shall not project more than eighteen (18) inches from the building surface to which it is mounted to the farthest point on the antenna or antenna mounting, whichever is farther, measured horizontally from the building surface.

(e) Co-location requirements.

(1) Co-location potential required. To limit the adverse visual effects of a proliferation of telecom sites in the City, the proposed construction of new telecom facilities shall be designed to accommodate co-location of two (2) or more service providers. Any new telecom facility may be required to co-locate with another existing or new facility, unless it can be demonstrated to be technically or economically infeasible.

(2) Co-location limitations. Except on public buildings and public property, no more than three (3) non-camouflaged telecom facilities on buildings or structures, or the number of antennas on a non-camouflaged monopole, uni-pole, or tower may co-locate at a single site unless findings can be made pursuant to Section 10-3.407(f) can be made. More than three (3) non-camouflaged telecom facilities on public buildings and public property require approval by the Director.

(3) Co-location on existing large towers. Co-location of more than three (3) telecom facilities on existing large towers (one hundred (100) feet or higher) may be approved by the Director pursuant to development plan review if the new telecom facility is determined to result in minimal increase on the visual intrusiveness to the surrounding area.

(f) Screening criteria. Telecom facilities must be visually compatible with surrounding buildings and vegetation through the use of techniques such as color and materials. In addition to the other design standards of this section, the following criteria shall be applied by the Director or Board, as applicable, in connection with the processing of any permit.

(1) On a Roof. Roof-mounted antennas shall be screened from view from adjacent properties and the public right-of-way. The screening may include parapets, walls, or similar architectural elements provided that they are designed, colored and textured to integrate with the existing architecture of the building.

(2) On a Building Facade. Building-mounted antennas shall be flush mounted and covered with an RF-transparent and visually opaque material of a color and texture to match the existing building, or be effectively disguised or screened as may be reasonably determined by the Director or Board as applicable.

(3) On Other Structures. Antennas mounted on or within structures such as a clock tower, steeple, park playfield light or water tank shall be integrated with the structure or effectively screened from public view.

(4) Monopole, Uni-pole, or Tower. A monopole or tower facility shall be concealed, screened, or camouflaged by existing or proposed new vegetation, buildings, or other structures and blend into the surrounding environment to the greatest extent possible as may be reasonably determined by the Director or Board as applicable.

(5) Support Equipment. Support equipment shall be screened from public view by decorative fence, wall, parapet, landscaping, berming or any combination thereof as approved by the Director or Board, or shall be located within a building, enclosure, or underground vault, which is designed, colored, textured, and landscaped to match the adjacent architecture or blend in with the surrounding environment. For ground-mounted installations, support equipment may be required to be screened in a security enclosure consistent with the design provisions. Chain link fencing including barbed wire and razor wire may be allowed if it is not visible from the public.

(g) Within the Public Right-of-Way. Telecom facilities and/or support equipment proposed to be located in the public right-of-way shall comply with the provisions of the Modesto Municipal Code. Telecommunications support equipment located in the public right-of-way shall be placed within flush-to-grade enclosures utilizing flush-to-grade venting systems except in those cases where the Director or Board, as applicable determines that it is not technically feasible to do so, in which case proper screening, as approved by the Director or Board as applicable, shall be required. In addition, ground-mounted equipment in the public right-of-way shall comply with all requirements of the Americans With Disabilities Act (ADA), and shall not interfere with drivers' sight lines for roadways, sidewalks, and driveways.

(h) Building Code. Wireless telecommunications facilities, including, but not limited to, antennas, support structures, equipment structures, and related structures and equipment shall be designed, constructed, and maintained in accordance with the most current California Building Code and other applicable codes, laws, and regulations, as enforced by the Division of Building Safety, to assure that all such facilities will maintain their structural integrity despite the efforts of the elements.

(i) Night Lighting. Telecom facilities shall not be lighted except:

(1) For City-approved security lighting at the lowest intensity necessary for that purpose; and

(2) As necessary for the illumination of the flag of the United States or the flag of the State of California, when such flag(s) are attached to or associated with the telecom facility. Such lighting shall be shielded so that direct illumination does not shine on nearby properties.

(3) Any lighting which may be required by State or Federal law.

(j) Signs and Advertising. No advertising signage or identifying logos shall be displayed on any telecom facility except for small identification, address, warning, and similar information plates not exceeding one (1) square foot or the minimum requirement by State or Federal law.

(Amended by Ord. No. 3618-C.S., § 2(Exh. A), effective 6-25-15)

(a) Development Plan Review. Telecom facilities may be approved by the Director pursuant to development plan review subject to all of the following findings:

(1) The proposed new telecom facility results in the least intrusive visual impact to the area.

(2) The proposed site will close a significant gap in coverage or service.

(3) The proposed telecom facility conforms with the provisions of this article.

(b) Conditional Use Permit. In considering any conditional use permit pursuant to Table 3.4-1 above, the Board shall determine that the applicant has demonstrated all of the following:

(1) Other locations or type of telecom facilities not requiring such approval are either not available or not feasible.

(2) The proposed telecom facility will not adversely impact the use of the property, other buildings and structures on the property, or the surrounding area or neighborhood.

(3) The proposed new telecom facility results in the least intrusive visual impact to the area.

(4) The proposed site will close a significant gap in coverage or service.

(5) The proposed telecom facility confirms with the provisions of this article.

(c) Variance for Wireless Telecommunication Facilities. The applicant for a variance shall have the burden of proof of showing that:

(1) There are special radio frequency technology circumstances or conditions applicable to the property or building in question which do not exist for other properties or buildings within a radius of two thousand (2,000) feet from the proposed facilities site;

(2) The special radio frequency technology circumstances or conditions are such that strict application of the provisions of this chapter would deprive the applicant of his ability to close a demonstrated significant gap in coverage or service in its own network coverage using the least intrusive means; and,

(3) Granting the variance will be consistent with the intent and purpose of this chapter and the Federal Communications Act of 1996 (Public Law 104-104).

(d) Maximum Height. Consideration to exceed the maximum height pursuant to Table 3.4-3 located in Section 10-3.406 may occur upon approval of a variance application based on making all of the following findings of Municipal Code Section 10-3.407(c).

(e) Separation Requirement. Consideration to reduce the one thousand (1,000) feet separation requirement located in Section 10-3.406 for non-camouflaged monopole, uni-pole, or tower telecom facilities from another non-camouflaged monopole, uni-pole, or tower telecom facilities may occur upon approval of a conditional use permit based on making both of the following findings:

(1) The visual impacts of the less than one thousand (1,000) feet separation are not significant.

(2) Requiring the one thousand (1,000) feet separation would result in a significant gap in coverage or service.

(f) Co-location. Consideration for more than three (3) non-camouflaged telecom facilities on buildings or structures, or the number of antennas on a non-camouflaged monopole, uni-pole, or tower may co-locate at a single site may be approved by the Director pursuant to a development plan review based on making the following finding.

(1) The net visual effect of locating an additional facility at a co-location site will be less than establishing a new location.

(a) Submission Requirements. Applications for telecom facilities shall be accompanied by the following minimum documentation, in such form and on such form as required by the Director. These are in addition to the usual zoning application submittal requirements for site plan review. The Director shall make changes to the form as necessary. The form shall be used to obtain required information to include in the City's administrative file for each project as required by federal law to base decisions on these projects on substantial evidence contained in the administrative file.

(1) Justification. A brief narrative, accompanied by written documentation where appropriate, that explains the purpose of the facility and validates the applicant's efforts to comply with the design, location, and co-location standards of this chapter.

(2) Coverage and Location Maps of Current and Future Facilities. As required by the Director, a map or maps showing the geographic areas to be served by the facility by area and radio frequency information. Maps and other supporting documentation demonstrating the need for the facility to close a significant gap in coverage or service, if such a gap is claimed by the applicant. In order to facilitate planning and reduce the need for future stand-alone telecom facilities, the Director may also require the applicant to submit a comprehensive plan of the operator's existing and future facilities that are or may be placed within the City limits of Modesto. The Director may waive this submittal requirement if it is determined unnecessary.

(3) Visual Simulations. Visual simulations showing "before" and "after" views of the proposed facility, unless the Director determines that such simulations are not necessary for the application in question. Consideration shall be given to views from both public areas and private residences. Such photos, simulations or other accurately scaled representations shall include all proposed antenna structures, antennas, and related accessory equipment including, without limitation, all related physical structures to be placed on any new or existing equipment or support device.

(4) Emission Standards. The Director may require documentation showing the specific frequency range that the facility will use upon and throughout activation, certification that the facility will continuously comply with FCC radio frequency emissions safety standards.

(5) Radio Frequency Compliance and RF Emissions Safety Report and Project Technology and Design Review. At its discretion, the City may engage outside consultants to evaluate and/or verify compliance with FCC radio frequency (RF) emissions safety requirements in FCC Office of Engineering and Technology Bulletin 65 (or revisions or replacements thereto), as well as to conduct a project technology and design review. Estimated fees for the outside consultants shall be deposited with the City in advance.

(6) Supporting Materials. Additional supporting materials deemed necessary by the reviewing Director in order to complete review of the proposal. Supporting materials may include, but are not limited to, color and material sample boards, proposed informational signage, landscaping plans, and other radio frequency related information.

(7) Supplemental Telecom Site Application Form. The City may require the use of a City-developed supplemental antenna site application form to solicit information in support of the development of a comprehensive administrative record.

(8) Fee. Applications shall be accompanied by a fee, as adopted by Resolution of the City Council, to defray all estimated reasonable costs and expenses incidental to review and processing of the application.

(a) Discontinued Use. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Director by certified mail no less than thirty (30) days prior to such action. The operator or owner of the affected real property shall have ninety (90) days from the date of abandonment or discontinuance, or a reasonable time as may be approved by the Director, within which to complete one (1) of the following actions:

(1) Reactivate use of the telecom facility;

(2) Transfer the rights to use the telecom facility to another entity and the entity immediately commences use;

(3) Remove the telecom facility and restore the site at the permittee's sole expense.

(b) Abandonment. Any telecom facility that is not operated for a continuous period of one hundred eighty (180) days or whose operator did not remove the telecom facility in accordance with subsection (a) shall be deemed abandoned. Upon a finding of abandonment, the City shall provide notice to the telecom carrier last known to use such facility and, if applicable, the owner of the affected real property, providing thirty (30) days from the date of the notice within which to complete one (1) of the following actions:

(1) Reactivate use of the telecom facility;

(2) Transfer the rights to use the telecom facility to another owner;

(3) Remove the telecom facility and restore the site at the permittee's sole expense.

(c) Removal. The City may remove any telecom facility on City owned property where service provider has not responded to the 30-day notice as provided in (a) and (b) above. The cost of the removal shall be paid by the service provider.