Division 17.46 — WIRELESS COMMUNICATION FACILITIES

Sections:

17.46.010 Purpose 17.46.020 Definitions 17.46.030 Applicability; Exemptions 17.46.040 Location; City site agreement 17.46.050 Permit; Application. 17.46.060 Independent Technical Review 17.46.070 Standards 17.46.080 Hearings; Findings

The purpose of this division is to provide a comprehensive set of standards for the development and installation of wireless communication facilities. The regulations are designed to protect and promote public safety and community welfare, property values, and the character and aesthetic quality of the city, while at the same time not unduly restricting the development of wireless communication facilities, and not unreasonably discriminating among wireless communication service providers of functionally equivalent services, including retail and other commercial providers of wireless communication services. This division applies to applications for approval of the installation of new or modified wireless communication facilities, including applications previously received by the city but not yet approved, disapproved or conditionally approved by a final city decision.

In this division:

Antenna means a device for transmitting and receiving radiofrequency signals. Antenna includes panel antennas, reflecting discs, microwave dishes, whip antennas, directions and non-directional antennas consisting of one or more elements, multiple antenna configurations, or other similar devices and configurations. The height of the antenna includes all array structures. Antenna includes a Distributed Antenna System (DAS), which is a network of spatially separated antenna sites connected to a common source that provides wireless service within a geographic area or structure.

Base station means all equipment and apparatus, excluding antennas, that are components of the WCF, including any antenna support system regular and backup power supply, other associated electronics, electronic receiving and relay equipment, enclosed equipment, electrical meters, and the necessary housing and foundations.

Camouflaged means designed to mask or blend with the surrounding environment in such a manner to render it generally unnoticeable to the casual observer. By way of example, a wireless communication facility may be camouflaged in a faux tree, faux bush, flagpole, or otherwise designed in a manner to be compatible with the appurtenant architecture, building, or natural surroundings.

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Collocation means the location of two or more wireless communication facilities on a single support structure.

Concealed means not observable. By way of example, a wireless communication facility will be considered concealed if it is contained within new or existing architectural details of a building, e.g., real or faux clock or bell tower, or on the roof of a building and concealed by parapets or screenwalls, or concealed by any other means, so long as the wireless communications facility does not substantially compromise the aesthetics of the building, and the new concealment element has been approved under a wireless communication facility permit.

Equipment cabinet means a cabinet or structure used to house equipment associated with a wireless communication facility.

FCC means Federal Communications Commission.

Monopole means a single free-standing pole, post, or similar structure, used to support equipment associated with a wireless communication facility.

Public right-of-way means a public highway, street, alley, sidewalk, or parkway that is subject to Public Utilities Code section 7901.

Related equipment means equipment ancillary to the transmission and reception of voice and data via radio frequencies. Related equipment may include, but is not limited to, cable, conduit and connectors.

Service provider means an authorized provider of wireless communication services.

Tower means a structure built for the sole or primary purpose of supporting wireless communication facilities, including a monopole. This does not include a structure that was installed to replace or collocate upon an existing power pole, light standard, energy transmission tower, or building.

Wireless communication facility means an unstaffed facility, generally consisting of antennas (including a Distributed Antenna System), an equipment cabinet or structure, and related equipment that receives and/or transmits radio frequency signals.

A. Applicability. This division 17.46 applies to all wireless communication facilities, except those exempted in subsection B below (though other permit requirements may apply).

B. Exemptions. The following facilities are exempt from this division:

1. Wireless communication facility for which a federal or state statute or regulation exempts the facility from the imposition of the permit requirements of this division but only to the extent of such exemption.

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2. Satellite dish antenna, less than one meter in diameter for receiving radio or television stations by the property owners, occupants or guests.

3. City-owned or operated communication facilities.

4. Communication equipment located completely inside a structure, not visible from the outside, whose purpose is solely to provide wireless communications within the same structure, including Wi-Fi hotspots and access points, with no alteration to the exterior of the structure.

• A. Priority for location.

1. Preference for Zone B, publicly-owned property, and public right of way sites. In order of preference, wireless communication facilities should be located (i) on publiclyowned property outside of the public right of way, in Zone B within the city (ii) on publicly-owned facilities in any other zone outside of the public right of way, or (iii) public rights-of-way.

2. Alternative locations. Any location for a wireless site outside of Zone B, not on publicly-owned property, or not with a public right of way will be considered according to the following priority:

a. The applicant must first attempt to locate a site in Zone D, the commercial zone, that is not used for residential purposes.

b. If it is infeasible to locate in Zone D, the applicant must attempt to locate at a non-residential property in Zone A, C or E.

3. General. In all cases, the preference, in order, is to locate on or in an existing structure which the wireless communication facility can be concealed; or to collocate on an existing wireless communication facility; or to locate on a new structure that can be incorporated in an inconspicuous or compatible manner with the surrounding area.

B. City site agreement.

1. Consideration by staff. If the applicant wishes to locate on city-owned property or facilities, the applicant must discuss its desired location(s) with staff (Public Works Director and Planning Director, as appropriate) before the submittal of an application. If the location appears to be generally feasible, city staff will negotiate the principal terms for a proposed site agreement with the applicant, spelling out in detail the specific facilities to be located on city property or facilities, the term of the agreement, the compensation to be provided the city, and other terms.

2. Consideration by City Council. When the principal terms for a proposed agreement have been prepared and approved by city staff, staff will schedule the matter

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for hearing before the City Council. The City Council will consider the proposed agreement as part of an ordinance, to the extent, required by City Charter Section 2.11(6). The City Council may defer its final decision regarding the agreement until after the wireless communication facility permit is approved.

3. Limited nature of consent. The city’s consent as property owner to process a wireless communication facility permit is not be deemed city consent to lease or license the property.

C. No wireless communication facilities on residential property. Wireless communication facilities shall not be installed on property which is used for residential purposes, irrespective of the zoning district in which such residential property is located.

A. Permit. A wireless communication facility permit is a type of conditional use permit specifically for wireless communication facilities and is required for each facility. If the wireless communication facility permit is approved, the owner or operator must also obtain a building permit before beginning construction.

B. Application.

1. All applications. An application for a wireless communication facility permit must include: a. a complete application on a form provided by the city, setting forth information for the applicant to submit;

b. evidence of a significant gap in coverage or capacity which the application seeks to address; and

c. applicable fees and/or deposits, including a deposit for independent technical review under section 17.46.060 below. If the application is to collocate a wireless communication facility at an existing wireless communication facility location, or to modify an existing wireless communication facility, the application shall address the applicability, if any, of federal or state laws governing such applications.

2. Application for location on city property. An applicant for a wireless communication facility proposed to be located on city property or in a public right-ofway must submit additional items, as set forth on the supplemental application form provided by the city, setting forth supplemental information for the applicant to submit.

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The Director is authorized in his or her discretion to retain an independent technical consultant to review materials submitted by the applicant and to provide an analysis of issues including but not limited to: whether the wireless communication facility meets the applicable radio frequency emission regulations; whether a significant gap in coverage or capacity exists and whether the proposed facilities are the least intrusive means of doing so; whether there are alternative sites and the feasibility of those sites; whether there are ways to mitigate aesthetic impacts; and any other specific technical issues designated by the Director. The applicant must pay the consultant's costs, and must increase the deposit to cover the anticipated amount as the Director may deem necessary from time-to-time.

A. Development Standards. The following development standards apply.

1. Collocation. New wireless communication facilities must be collocated with existing facilities and with other planned new facilities whenever feasible. A new wireless tower must be designed and constructed to accommodate future collocation(s) unless the city determines that collocation would be infeasible because of physical or design issues specific to the site.

2. Height limits; Screening. No wireless communication facility may exceed 35 feet in height, measured from the ground to the highest point of the wireless communication facility, unless the zoning district in which the wireless communication facility is located expressly provides a higher height limit. Ground mounted wireless communication equipment, base station, antenna, pole, or tower must be the minimum functional height, unless a variance is granted. Roof mounted equipment and antennas must be located to minimize visibility.

3. Visual impact. Wireless communication facilities must be designed to minimize visual impacts. When feasible, the facilities must be concealed or camouflaged. The facilities must have a non-reflective finish and be painted or otherwise treated to minimize visibility and the obstruction of views.

The facilities may not bear signs, other than certification, warning, emergency contacts, or other signage required by law or expressly required by the city.

4. Public health, peace and safety. A wireless communication facility may not adversely affect the public health, peace and safety.

5. Public right-of-way. A wireless communication facility located in the public right-of-way may not cause: (i) physical or visual obstruction, or safety hazard, to pedestrians, cyclists, or motorists; or (ii) inconvenience to the public's use of the right-ofway. Equipment, walls, and landscaping located above grade must be at least 18 inches from the front of the curb and not interfere with the public’s use of the right-of-way.

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6. Compliance with laws. Each wireless communication facility must comply with federal and state statutes governing local agencies’ land use authority regarding the siting of wireless communication facilities, including without limitation 47 USC sections 253, 332(c)(7), 47 USC section 1455 (also known as section 6409 of the 2012 Middle Class Tax Relief and Jobs Act), California Government Code sections 50030, 65850.6 and 65964, and California Public Utilities Code sections 7901 and 7901.1. Each reference to a federal and state statutes is to the statute as it may be as amended from time-to-time and to the extent the statute remains in effect.

B. Operation and Maintenance Standards

1. Contact and site information. The owner or operator of a wireless communication facility must submit basic contact and site information to the city, and notify the city within 30 days of any changes to this information, including the transfer of ownership. The contact and site information must include: (i) the name, address, email address, telephone number, and legal status of the owner of the facility, including official identification number and FCC certification, and, if different from the owner, the identity and legal status of the person or entity responsible for operating and maintaining the facility; and (ii) the name, address, email address, and telephone number of a local contact person for emergencies.

2. Signage. The owner and/or operator must post an identification sign at each facility, including owner/operator emergency telephone numbers. The design, materials, colors, and location of the identification signs shall be subject to review and approval by the Director. If at any time a new owner or operator provider takes over operation of an existing personal wireless service facility, the new personal wireless service provider shall notify the Director of the change in operation within 30 days and the required and approved signs shall be updated within 30 days to reflect the name and phone number of the new wireless service provider. The colors, materials and design of the updated signs shall match those of the required and approved signs. No sign shall be greater than two square feet in size.

3. FCC compliance. Each wireless communication facility must comply with FCC regulations, and avoid interfering with any city communication facilities, operations, utilities, equipment, or public safety communications. If the facility negatively impacts city facilities or equipment, the operator must comply with all FCC regulations and orders to resolve the interference. At the city’s discretion, and at the operator's expense, the city may retain an outside technical consultant to evaluate and verify compliance with FCC regulations and to determine the cause of interference for an existing facility.

4. Facility maintenance. Each wireless communication facility must be maintained in good repair, free from trash, debris, litter, graffiti, and other forms of vandalism. The operator must repair any damage as soon as reasonably possible, but no later than 90 days from the time of notification.

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Landscaping elements at a wireless communication facility site must be maintained in good condition, and in compliance with the approved landscape plan. The owner or operator is responsible for replacing any damaged, dead, or decayed landscape materials and making necessary irrigation and equipment repairs as soon as reasonably possible.

5. Noise. A wireless communication facility must be operated to minimize noise that is audible as provided in Chapter 8 of the City Code

6. Removal. All wireless communication facility equipment must be removed within 30 days of the discontinuation of the use, and the site restored to its original, preconstruction condition. In addition, the service provider must provide the city with a notice of intent to vacate a site a minimum of 30 days before the vacation. For a wireless communication facility to be located on public property, this removal requirement will be included within the lease. For a facility to be located on private property, the property owner is encouraged to also include this in the lease, because the property owner will otherwise be responsible for removal.

C. Term of permit. A wireless communication facility permit is valid for an initial period of ten years unless: (i) a longer period is required by state or federal law; or (ii) a shorter time is required as a condition of approval for particular circumstances set forth in the decision, particularly with respect to public safety or substantial land use reasons under California Government Code section 65964(b). The Director may administratively extend a permit upon verification of continued compliance with this division 17.46 and any conditions of approval.

However, a permit granted for a collocation or modification under section 17.46.080 D.2.b will be effective for the shorter of: (i) the term of the original permit; or (ii) a longer period if required by state or federal law.

A. Reviewing body. The Planning Commission is the reviewing body, except that:

1. the City Council is the reviewing body for a facility in Zone B or on city-owned property or facilities (including collocations), following a recommendation from the Planning Commission; and

2. the Director is the reviewing body for an application for a collocation that meets the criteria set forth in section 17.46.080.D.2.b or for which the wireless communication facility will be fully concealed or camouflaged. The Director will take action on the application without public notice or public hearing, unless the Director refers the application to the Planning Commission.

B. Planning Commission. After receiving a completed application, the city staff will schedule a noticed public hearing before the Planning Commission consistent with divisions 17.62 and 17.64. If the application involves city-owned property, the Planning Commission makes a recommendation to the City Council.

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C. City Council. The City Council will hear each application: (i) involving a facility in Zone B or on city-owned property or facilities; or (ii) appealed from the Planning Commission.

D. Required findings; Exceptions.

1. Findings. Before approving a wireless communication facility permit, the reviewing body must make the following findings:

a. The facility is necessary to close a significant gap in the operator's service coverage or capacity.

b. The applicant has evaluated and met the priority for location standards of section 17.46.040 A above.

c. The proposal satisfies each of the applicable development standards in section 17.46.070 above.

d. The proposed design is consistent with the Piedmont Design Standards and Guidelines.

e. The proposed facility has been located and designed for collocation to the greatest extent reasonably feasible, and the applicant has submitted a statement of its willingness to allow other wireless service providers to collocate on the proposed facility.

2. Exceptions.

a. General. The decision-making body may grant an exception to any requirement of this division 17.46, including without limitation the priority for location under section 17.46.040 A, if the applicant establishes that strict compliance would violate federal or state law.

b. Modification. The Director may consider and grant, modify and grant or deny a modification to an existing wireless communications facility if the modification meets the requirements of section 6409. In determining whether to approve the requested modification the Director shall consider the following:

i. Alterations to the width, bulk, or arrangement of a wireless communication facility that may result in a potentially significant or material impact to public access or use of any public or private right-ofway, or any potentially significant or material impact to public health, safety, or welfare;

ii. Alterations to required access, parking, or landscaping from that shown on the approved site plans;

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iii. Alterations that include excavation outside the wireless telecommunications facility site, defined as the boundaries of the controlled, leased or owned property surrounding the tower and base station and any access or utility easements related to the site as shown on the approved plans;

iv. An increase in the height of a freestanding tower that is less than the applicable height limit;

v. Replacement of the wireless tower or foundation;

vi. Alteration or expansion of the exterior of a facility that was originally approved as concealed or camouflaged in such a manner so that it may no longer be concealed or camouflaged; or

vii. An increase by more than ten percent of the physical dimensions or exposed surface area of any component of the tower or base station (including, but not limited to, the height, circumference, or width of the wireless tower or base station), or an increase by more than ten percent from the dimensions of any structures required to support the wireless tower or base station, such as guy wires, as approved and constructed through the discretionary permit process; provided that in no event may the height exceed the maximum height permitted under this section 17.46, the zoning district or the wireless tower or base station’s initial approval.

Any proposed modification that is not a collocation, or for which the wireless communication facility will be fully concealed or camouflaged, or that does not fall within the requirements of section 6409 shall be reviewed and considered under the same provisions and requirements as those required for the original consideration of the permit proposed for modification.

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