Chapter 20.460 — SURFACE MINING

Section 20.460.010 - Purpose of Chapter

A.

This article is adopted pursuant to the California Surface Mining and Reclamation Act of 1975 (as amended), section 2710 et seq. of the California Public Resources Code (PRC).

B.

The extraction of minerals is essential to the continued economic well-being of the City and to the region, and the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment; to protect the public health, safety, and welfare; and to promote achievement of the goals and objectives of the San Marcos General Plan.

C.

The purpose of this chapter is to regulate all surface mining operations authorized by this Zoning Ordinance and by the California Surface Mining and Reclamation Act of 1975 (SMARA) to ensure the following:

1.

The continued mining of minerals will be permitted in a manner that will ensure that residual hazards to the public health and safety are eliminated and provide for the protection and subsequent beneficial use of mined and reclaimed land; and

2.

The possible adverse effects of surface mining operations on the environment, including air pollution, impedance of groundwater movement, water quality degradation, damage to aquatic or wildlife habitat, flooding, erosion, and sedimentation, will be prevented or minimized; and

The production and conservation of minerals are encouraged while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment.

Section 20.460.020 - Incorporation by Reference

The provision of SMARA (PRC Section 2710 et seq.), PRC Section 2207, and California Code of Regulations (CCR) Section 3500 et seq., as those provisions and regulations may be amended from time to time, are made a part of this chapter by reference with the same force and effect as if the provisions therein were specifically and fully set out herein, excepting that when the provisions of this chapter are more restrictive than correlative state provisions, this chapter shall prevail.

Section 20.460.030 - Applicability

Except as provided in this chapter, no persons shall conduct surface mining operations unless a CUP, Reclamation Plan, and financial assurances for reclamation have first been approved by the City. Any applicable exemption from this requirement does not automatically exempt a project or activity from the application of other regulations, ordinances or policies of the City, including the application of CEQA, the requirement of a CUP, the payment of development impact fees, or the imposition of other dedications and exactions as may be permitted under the law. The provisions of this chapter shall apply to all public and private lands within the City.

A.

The provisions of this article shall apply to the incorporated areas of the City.

B.

This chapter shall not apply to the following activities, subject to the above-referenced exceptions:

1.

Excavations or grading conducted for farming or on-site construction or for the purpose of restoring land following a flood or natural disaster.

2.

On-site excavation and on-site earthmoving activities that are an integral and necessary part of a construction project that are undertaken to prepare a site for construction of structures, landscaping, or other land improvements, including the related excavation, grading, compaction, or the creation of fills, road cuts, and embankments, whether or not surplus materials are exported from the site, subject to all of the following conditions:

a.

All required permits for the construction, landscaping, or related land improvements have been approved by a public agency in accordance with applicable provision of state law and locally adopted plans and ordinances, including CEQA (PRC Section 21000 et seq.).

b.

The City's approval of the construction project included consideration of the on-site excavation and on-site earthmoving activities pursuant to CEQA.

c.

The approved construction project is consistent with the general plan or zoning of the site.

d.

Surplus materials shall not be exported from the site unless and until actual construction work has commenced and shall cease if it is determined that construction activities have terminated, have been indefinitely suspended, or are no longer being actively pursued.

3.

Prospecting and exploration for minerals of commercial value where less than 1,000 cubic yards of overburden is removed in any one (1) location of one (1) acre or less.

4.

Any surface mining operation that does not involve either the removal of a total of more than 1,000 cubic yards of minerals, ores, and overburden, or involve more than one (1) acre in any one (1) location.

5.

Surface mining operations that are required by federal law in order to protect a mining claim, if those operations are conducted solely for that purpose.

6.

Emergency excavations or grading conducted by the Department of Water Resources, the Reclamation Board, for the purpose of averting, alleviating, repairing, or restoring damage to property due to imminent or recent floods, disasters, or other emergencies.

Section 20.460.040 - Procedures

A.

Applications for a CUP or Reclamation Plan for surface mining or land reclamation projects shall be made on forms provided by the Director. These applications shall be filed in accord with this chapter and procedures established by the City. The forms for Reclamation Plan application shall require, at a minimum, each of the elements required by SMARA (Sections 2772—2773) and state regulations, and any other requirements deemed necessary to facilitate an expeditious and fair evaluation of the proposed Reclamation Plan, to be established at the discretion of the Director. As many copies of the CUP application as may be required by the Director shall be submitted to the Planning Division.

B.

As many copies of a Reclamation Plan application as may be required shall be submitted in conjunction with all applications for a CUP for surface mining operations. For surface mining operations that are exempt

from a CUP pursuant to this chapter, the Reclamation Plan application shall include information concerning the mining operation that is required for processing the Reclamation Plan. All documentation for the Reclamation Plan shall be submitted together to the City in a single application.

C.

Applications shall include all required environmental review forms and information prescribed by the City in Title 18 of this Code.

D.

Upon completion of the environmental review procedure and filing of all documents required by the City, consideration of the CUP or Reclamation Plan for the proposed or existing surface mine shall be completed pursuant to this Code at a public hearing before the Planning Commission, and pursuant to PRC Section 2774.

E.

The Planning Division shall process the application(s) through environmental review pursuant to CEQA and with the provisions of the City's Environmental Guidelines. The environmental review process shall be completed and a CEQA document prepared and certified prior to initiating or in conjunction with a public review and hearing on a surface mining use permit and/or a Reclamation Plan application(s).

F.

Within thirty (30) days of acceptance of an application for a CUP for surface mining operations, the Planning Division shall notify the California Department of Conservation of the filing of the application(s). Whenever mining operations are proposed in the one hundred (100)-year floodplain of any stream, as shown in Zone A of the Flood Insurance Rate Maps issued by FEMA, and within one (1) mile, upstream or downstream, of any state highway bridge, the Planning Division shall also notify the California Department of Transportation that the application has been received.

G.

Subsequent to the appropriate environmental review, the Planning Division shall prepare a staff report with recommendations for consideration by the Planning Commission.

H.

The Director shall coordinate the review of the Use Permit and Reclamation Plan applications with concerned City departments and other public agencies and shall schedule a public hearing within ninety (90) days of the completion of the environmental review process. This public hearing shall be held by the Planning Commission in accord with the provisions of Chapter 20.500 (Administration) of this Zoning Ordinance, for the purpose of consideration of the issuance of a CUP for a proposed surface mining operation and Reclamation Plan approval.

I.

Prior to final approval of a Reclamation Plan, financial assurances (as provided in this chapter), or any amendments to the Reclamation Plan or existing financial assurances, the Planning Commission shall certify that the Reclamation Plan and/or financial assurance complies with the applicable requirements of state law, and submit the plan, assurance, or amendments to the California Department of Conservation for review. The Planning Commission may conceptually approve the Reclamation Plan and financial assurance before submittal to the California Department of Conservation. If a CUP is being processed concurrently with the Reclamation Plan, the Planning Commission may simultaneously also conceptually approve the CUP. However, the Planning Commission may defer action on the CUP until taking final action on the Reclamation Plan and financial assurances. If necessary to comply with permit processing deadlines, the Planning Commission may conditionally approve the CUP with the condition that the City shall not issue any grading permits for the mining operations until cost estimates for financial assurances have been reviewed by the California Department of Conservation and final action has been taken on the Reclamation Plan and financial assurances. Pursuant to PRC Section 2774(d), the California Department of Conservation shall be given thirty (30) days to review and comment on the Reclamation Plan and forty-five (45) days to review and comment on the financial assurance. The Planning Commission shall evaluate written comments received, if any, from the California Department of Conservation during the comment periods. Staff shall prepare a written response describing the disposition of the major issues raised by the state for the Planning Commission's approval. In particular, when the Planning Commission's position is at variance with the recommendations and objections raised in the state's comments, the written response shall address, in detail, why specific comments and suggestions were not accepted. Copies of any written comments received and responses prepared by the Planning Commission shall be promptly forwarded to the operator/applicant.

J.

The Planning Commission shall then take action to approve, conditionally approve, or deny the CUP and/or Reclamation Plan, and to approve the financial assurances pursuant to PRC Section 2770(d).

K.

The Planning Division shall forward a copy of each approved CUP for mining operations and/or approved Reclamation Plan, and a copy of the approved financial assurances to the California Department of Conservation.

L.

By July 1 of each year, the Planning Division shall submit to the California Department of Conservation for each active or idle mining operation a copy of the CUP or Reclamation Plan amendments, as applicable, or a statement that there have been no changes during the previous year.

M.

The Director of the Department of Conservation shall be notified of the filing of all permit applications.

N.

All plans and specifications for the grading of the property shall be prepared or approved and signed by a registered civil engineer.

Section 20.460.050 - Standards for Reclamation

A.

All Reclamation Plans shall comply with the provisions of SMARA (Sections 2772 and 2773) and state regulations (CCR Sections 3500—3505). Reclamation Plans approved after January 15, 1993, Reclamation Plans for proposed new mining operations, and any substantial amendments to previously approved Reclamation Plans, shall also comply with the requirements for reclamation performance standards (CCR Sections 3700—3713).

B.

The City may impose additional performance standards as developed either in review of individual projects, as warranted, or through the formulation and adoption of City-wide performance standards.

C.

Reclamation activities shall be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance. Interim reclamation may also be required for mined lands that have been disturbed and that may be disturbed again in future operations. Reclamation may be done on an annual basis, in stages compatible with continuing operations, or on completion of all excavation, removal, or fill, as approved by the City. Each phase of reclamation shall be specifically described in the Reclamation Plan and shall include the following:

1.

The beginning and expected ending dates for each phase,

2.

All reclamation activities required,

3.

Criteria for measuring completion of specific reclamation activities, and

4.

Estimated costs for completion of each phase of reclamation.

D.

The Reclamation Plan shall, in addition to all other requirements, provide in designated phases for the progressive rehabilitation of the mining site land form so that, when reclamation is complete, it will contain stable slopes, be readily adaptable for alternate land uses, and free of waste materials and scraps. The proposed mining site land form, to the extent reasonable and practical, shall be revegetated for soil stabilization, free to drainage problems, coordinated with present and anticipated future land use, and compatible with the topography and general environments of surrounding properties.

Section 20.460.060 - Review Criteria and Findings

The Planning Commission, and on appeal, the City Council, shall be governed by the criteria established herein and by Chapter 17.32 of this Code, in reviewing and granting of a CUP and/or a Reclamation Plan. A CUP shall not be granted unless the Planning Commission determines and finds the following:

A.

The proposed surface mine is consistent with the San Marcos General Plan and furthers its implementation.

B.

The proposed surface mine will not impose or create a threat to the public health, safety, or welfare either during its operation or upon completion of said operation.

C.

Establishment of the surface mine will not adversely affect the environment in any manner that is not mitigated satisfactorily by the Planning Commission.

D.

Erosion control practices and facilities are proposed that will minimize soil erosion from the site and prevent degradation of downstream watershed.

E.

The proposed surface mining operation will not be detrimental to any scenic corridor or preservation district officially designated as such by local, state, or federal agencies.

F.

The site is physically suited for a surface mining operation (e.g., existing or proposed ingress and egress routes are adequate to serve the site).

G.

The proposed surface mine will not damage any public or private property or interfere with any existing drainage course(s) in such a manner as to cause damage to any adjacent property or result in the deposition of debris in or on any public ROW or create a hazard to persons or property.

H.

The land area on which the surface mine is proposed is not subject to geological hazards to the extent that no reasonable amount of corrective work will eliminate or significantly reduce any potential hazard to persons or property.

I.

The proposed surface mining site is to be fenced and/or maintained in such a manner that no hazards are presented to the public.

J.

Finished slopes must match or blend with the natural contours and undulations of surrounding land areas in accord with the provisions of the San Marcos Grading Ordinance.

K.

Finish slopes that exceed ten (10) feet in vertical height shall conform to the Grading Code requirements in Chapter 17.32 of this Code as revised and that are exposed to public view from or across such open areas as roads, canyons, floodplains, or similar public vantage (view) points or open spaces are adequately screened or landscaped.

L.

Where the primary purpose of a surface mining (borrow pit) operation is to prepare (level) a site for future site development related to a specific use, the timing of the project in relation to development in the surrounding area should be a major consideration. When the operation is determined to be premature, it may be grounds for denial pursuant to the provision of the City Zoning Ordinance.

Section 20.460.070 - Reapplication for Surface Mining Use Permit and Reclamation Plan

Any application for a surface mining use permit and Reclamation Plan that is denied by the City Council shall be revised as directed by the City Council and resubmitted within one hundred twenty (120) days of such denial. All resubmitted plans shall be accompanied by any required fee(s) unless said fee(s) is/are waived by the City Council.

Section 20.460.080 - Statement of Responsibility

The person submitting a CUP for a surface mining and Reclamation Plan shall sign a statement accepting responsibility for reclaiming the mined land in accordance with the Reclamation Plan. This statement shall be kept by the Planning Division in the mining operation's permanent record. Upon sale or transfer of the operation, the new operator shall submit a signed statement of responsibility to the Planning Division for placement in the permanent record.

Section 20.460.090 - Findings for Approval

A.

Conditional Use Permit. In addition to any findings required by this Code, CUPs for surface mining operations shall include a finding that the project complies with the provisions of SMARA and state regulations.

B.

Reclamation Plans. For Reclamation Plans, the following findings shall be required:

1.

That the Reclamation Plan complies with SMARA Sections 2772 and 2773 and any other applicable provisions.

That the Reclamation Plan complies with applicable requirements of state regulations (CCR Sections 3500 —3505 and 3700—3713).

3.

That the Reclamation Plan and potential use of reclaimed land pursuant to the plan are consistent with this chapter and the City's General Plan and any applicable resource plan or element.

4.

That the Reclamation Plan has been reviewed pursuant to CEQA and the City's environmental review guidelines, and all significant adverse impacts from reclamation of the surface mining operations are mitigated to the maximum extent feasible.

5.

That the land and/or resources such as water bodies to be reclaimed will be restored to a condition that is compatible with, and blends in with, the surrounding natural environment, topography, and other resources, or that suitable off-site development will compensate for related disturbance to resource values.

6.

That the Reclamation Plan will restore the mined lands to a usable condition that is readily adaptable for alternative land uses consistent with the General Plan and applicable resource plan.

7.

That a written response to the California Department of Conservation has been prepared, describing the disposition of major issues raised by that Department. Where the City's position is at variance with the recommendations and objections raised by the California Department of Conservation, said response shall address, in detail, why specific comments and suggestions were not accepted.

Section 20.460.100 - Financial Assurances

A.

To ensure that reclamation will proceed in accordance with the approved Reclamation Plan, the City shall require, as a condition of approval, security that will be released upon satisfactory performance. The applicant may pose security in the form of a surety bond, trust fund, irrevocable letter of credit from an accredited financial institution, or other method acceptable to the City and the State Mining and Geology Board as specified in state regulations, and that the City reasonably determines are adequate to perform reclamation in accordance with the surface mining operation's approved Reclamation Plan. Financial assurances shall be made payable to the City of San Marcos and the California Department of Conservation.

B.

Financial assurances will be required to ensure compliance with elements of the Reclamation Plan, including revegetation and landscaping requirements, restoration of aquatic or wildlife habitat, restoration

of water bodies and water quality, slope stability and erosion and drainage control, disposal of hazardous materials, and other measures, if necessary.

C.

Cost estimates for the financial assurance shall be submitted to the Planning Division for review and approval prior to the operator securing financial assurances. The Director shall forward a copy of the cost estimates, together with any documentation received supporting the amount of the cost estimates, to the California Department of Conservation for review. If the Department of Conservation does not comment within forty-five (45) days of receipt of these estimates, it shall be assumed that the cost estimates are adequate, unless the City has reason to determine that additional costs may be incurred. The Director shall have the discretion to approve the financial assurance if it meets the requirements of this chapter, SMARA, and state regulations.

D.

The amount of the financial assurance shall be based upon the estimated costs of reclamation for the years or phases stipulated in the approved Reclamation Plan, including any maintenance of reclaimed areas as may be required, subject to adjustment for the actual amount required to reclaim lands disturbed by surface mining activities since January 1, 1976, and new lands to be disturbed by surface mining activities in the upcoming year. Cost estimates should be prepared by a California registered Professional Engineer and/or other similarly licensed and qualified professionals retained by the operator and approved by the Director. The estimated amount of the financial assurance shall be based on an analysis of physical activities necessary to implement the approved Reclamation Plan, the unit costs for each of these activities, the number of units of each of these activities, and the actual administrative costs. Financial assurances to ensure compliance with revegetation, restoration of water bodies, restoration of aquatic or wildlife habitat, and any other applicable element of the approved Reclamation Plan shall be based on cost estimates that include but may not be limited to labor, equipment, materials, mobilization of equipment, administration, and reasonable profit by a commercial operator other than the permittee. A contingency factor of ten percent (10%) shall be added to the cost of financial assurances.

E.

In projecting the costs of financial assurances, it shall be assumed without prejudice or insinuation that the surface mining operation could be abandoned by the operator and, consequently, the City or California Department of Conservation may need to contract with a third party commercial company for reclamation of the site.

F.

The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period until reclamation is completed (including any maintenance required).

G.

The amount of financial assurances required of a surface mining operation for any one (1) year shall be adjusted annually to account for new lands disturbed by surface mining operations, inflation, and reclamation of lands accomplished in accordance with the approved Reclamation Plan. The financial

assurances shall include estimates to cover reclamation for existing conditions and anticipated activities during the upcoming year, excepting that the permittee may not claim credit for reclamation scheduled for completion during the coming year.

H.

Revision of financial assurances shall be submitted to the Director each year prior to the anniversary date for approval of the financial assurances. The financial assurance shall cover the cost of existing disturbance and anticipated activities for the next calendar year, including any required interim reclamation. If revisions to the financial assurances are not required, the operator shall explain, in writing, why revisions are not required.

Section 20.460.110 - Performance Bond and Agreement Requirement

A.

Upon a finding by the Planning Division that a supplemental guarantee for the reclamation of the mined land is necessary, and upon the determination by the Planning Commission of the cost of the reclamation of the mined land according to the Reclamation Plan, a surety bond, lien, or other security guarantee conditioned upon the faithful performance of the Reclamation Plan shall be filed with the City Engineering Department. This surety shall be executed in favor of the City of San Marcos and reviewed and revised, as necessary bi-annually.

B.

No surface mining shall be conducted pursuant to a CUP or pursuant to vested nonconforming rights unless prior to commencement of grading, an agreement has been entered into, allowing the City to enter the property to correct any landscaping or irrigation system deficiencies, any unsafe condition, or breach or provisions of the CUP and/or Reclamation Plan. Said agreement shall be executed by the permittee, the owner of the property and by holders, except government entities, of any lien upon the property that could ripen into a fee. The permittee shall provide acceptable evidence of title showing all existing legal and equitable interests in the property. The agreement shall be recorded prior to the commencement of grading pursuant to a CUP or Reclamation Plan. Any security instrument as required by this section, shall provide that in the event suit is brought by the City and judgment recovered, the surety shall pay, in addition to the above specified sum, all costs incurred by the City in such suit, including reasonable attorney's fee.

Section 20.460.120 - Interim Management Plans

A.

Within ninety (90) days of a surface mining operation becoming idle, the operator shall submit to the Planning Division a proposed Interim Management Plan (IMP). The proposed IMP shall fully comply with the requirements of SMARA, including all CUP conditions, and shall provide measures the operator will implement to maintain the site in a stable condition, taking into consideration public health and safety. The proposed IMP shall be submitted on forms provided by the Planning Division, and shall be processed as an amendment to the Reclamation Plan. IMPs shall not be considered a project for the purposes of environmental review.

B.

Financial assurances for idle operations shall be maintained as though the operation were active, or as otherwise approved through the idle mine's IMP.

C.

Upon receipt of a complete proposed IMP, the Planning Division shall forward the IMP to the California Department of Conservation for review. The IMP shall be submitted to the Department of Conservation at least thirty (30) days prior to approval by the Planning Commission.

D.

Within sixty (60) days of receipt of the proposed IMP, or a longer period mutually agreed upon by the Director and the operator, the Planning Commission shall review and approve or deny the IMP in accordance with this chapter. The operator shall have thirty (30) days, or a longer period mutually agreed upon by the operator and the Director, to submit a revised IMP. The Planning Commission shall approve or deny the revised IMP within sixty (60) days of receipt. If the Planning Commission denies the revised IMP, the operator may appeal that action to the City Council.

E.

The IMP may remain in effect for a period not to exceed five (5) years, at which time the Planning Commission may renew the IMP for another period not to exceed five (5) years, or require the surface mining operator to commence reclamation in accordance with its approved Reclamation Plan.

Section 20.460.130 - Annual Report Requirements

Surface mining operators shall forward an annual surface mining report to the California Department of Conservation and to the Planning Division on a date established by the Department of Conservation, upon forms furnished by the State Mining and Geology Board. New mining operations shall file an initial surface mining report and any applicable filing fees with the Department of Conservation within thirty (30) days of permit approval, or before commencement of operations, whichever is sooner. Any applicable fees, together with a copy of the annual inspection report, shall be forwarded to the Department of Conservation at the time of filing the annual surface mining report.

The Planning Division shall arrange for inspection of a surface mining operation within six (6) months of receipt of the Annual Report required in Section 20.460.130 (Annual Report Requirements), to determine whether the surface mining operation is in compliance with the approved CUP and/or Reclamation Plan, approved financial assurances, and state regulations. In no event shall less than one (1) inspection be conducted in any calendar year. These inspections may be made by a state-registered geologist, stateregistered civil engineer, state-licensed landscape architect, who is experienced in land reclamation and who has not been employed by the mining operation in any capacity during the previous twelve (12) months, or other qualified specialists, as selected by the Director by any authorized member of the Division or such other persons as may be designated by the City Council. The operator shall pay for these

inspections. All inspections shall be conducted using a form approved and provided by the State Mining and Geology Board.

The Planning Division shall notify the California Department of Conservation within thirty (30) days of completion of the inspection that said inspection has been conducted, and shall forward a copy of this inspection notice and any supporting documentation to the mining operator. The operator shall be solely responsible for the reasonable cost of such inspection.

If the Planning Division determines that the CUP or Reclamation Plan is not continuing compliance as approved, the mining operator shall be so notified and given a reasonable time to comply, but not to exceed ninety (90) calendar days. If, at the end of this period of time, the CUP or Reclamation Plan is still not being followed and completed as approved, the Director shall set the matter for public hearing before the Planning Commission for modification or revocation of a CUP.

At the hearing, if the Planning Commission determines that the operator is not complying with the CUP or Reclamation Plan, the Planning Commission shall revoke or merely suspend the permit until the operator either complies or obtains approval of a revised CUP or Reclamation Plan. The Planning Commission shall

also determine whether said Reclamation Plan must be accompanied by a security. If the Planning Commission determines that the mining operator is making reasonable effort to comply with the Reclamation Plan, an additional period of time, not exceeding ninety (90) days, may be allowed for full compliance.

Section 20.460.160 - Violations and Penalties

If the Director, based upon an annual inspection or otherwise confirmed by an inspection of the mining operation, determines that a surface mining operation is not in compliance with this chapter, the applicable CUP, any required permit and/or the Reclamation Plan, the City shall follow the procedures set forth in PRC Sections 2774.1 and 2774.2 concerning violations and penalties, as well as those provision of this Code for revocation and/or abandonment of a CUP that are not preempted by SMARA.

A.

The provisions of this chapter shall be enforced by any authorized member of the Planning Division of the City or such other persons as may be designated by the City Council.

B.

A violation of any provision of this chapter shall be deemed a misdemeanor and upon conviction thereof, shall be punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment not to exceed six (6) months, or both, each day of violation being deemed to be a separate offense.

Section 20.460.180 - Appeals

Any person aggrieved by an act or determination of the Planning Commission in the exercise of the authority granted herein shall have the right to appeal to the City Council pursuant to the procedures set

forth in City Zoning code, Chapter 20.545 (Appeals and Revocations) of this Zoning Ordinance. Any appeal must be made within ten (10) days after the rendition, in writing, of the decision.

Section 20.460.190 - Public Records

Reclamation plans, reports, applications, and other documents submitted pursuant to this chapter are public records unless it can be demonstrated to the satisfaction of the City that the release of such information, or part thereof, would reveal production, reserves, or rate of depletion entitled to protection as proprietary information. The City shall identify such proprietary information as a separate part of each application. A copy of all permits, Reclamation Plans, reports, applications and other documents submitted pursuant to this chapter, including proprietary information, shall be furnished to the Director of the Department of Conservation by the City of San Marcos. Proprietary information shall be made available to persons other than the Director only when authorized by the mine operator and by the mine owner in accordance with PRC Section 2778.

Section 20.460.200 - Fees

The City shall establish such fees as it deems necessary to cover the reasonable costs incurred in implementing this chapter and the state regulations, including processing of applications, annual reports, inspections, monitoring, enforcement, and compliance. Such fees shall be paid by the operator, as required by the City at the time of filing of the CUP application, Reclamation Plan application, and at such other times as are determined by the City to be appropriate in order to ensure that all reasonable costs of implementing this chapter are borne by the mining operator.

Section 20.460.210 - Amendments

A.

An approved surface mining use permit and/or Reclamation Plan, or any condition thereof, may be revised, amended or modified in the same manner as provided in this article for a new application.

B.

Minor amendments to the Reclamation Plan may be approved by the Director where the Director determines that:

1.

the change is minor in accord with the provisions of the Chapter 20.530 (Amendments) of this Zoning Ordinance;

2.

will not result in a substantial change in the finished appearance of the mining site land form;

3.

will not increase the impact on adjacent property; and

the change is consistent with the intent of this chapter and the State Surface Mining and Reclamation Act.

Section 20.460.220 - Liability and Responsibility of Permittee

Neither the issuance of a CUP or Reclamation Plan, nor the compliance with any provisions or condition thereof, shall relieve any person from any liability or responsibility resulting from grading operation as specified elsewhere in this Code.

Section 20.460.230 - Successor in Interest

Whenever any surface mining operation or portion of an operation subject to this chapter is sold, assigned, conveyed, exchanged, or otherwise transferred, the successor in interest shall be bound by the provisions of any Reclamation Plan approved pursuant to the provisions of this chapter.

CHAPTER 20.465 - WIRELESS TELECOMMUNICATIONS FACILITIES

Section 20.465.010 - Purpose of Chapter

The purpose of this chapter is to provide a uniform and comprehensive set of procedures and standards for the development, siting, installation, and removal of Wireless Telecommunications Facilities, Amateur Radio Facilities, and Over-the-Air Receiving Devices. More specifically, the purpose of this chapter is as follows:

A.

Provide for the managed development and installation, maintenance, modification, and removal of wireless telecommunications infrastructure in the City with the fewest number of Wireless Telecommunications Facilities to complete a network without unreasonably discriminating against wireless telecommunications providers of functionally equivalent services including all of those who install, maintain, operate, and remove Wireless Telecommunications Facilities.

B.

Promote and protect the public health, safety, and welfare by reducing the visibility of telecommunications facilities to the fullest extent possible through techniques, including but not limited to, camouflaging and underground of wireless facilities and the equipment associated therewith.

C.

Encourage the deployment of smaller, less intrusive wireless facilities to supplement existing larger wireless facilities.

D.

Reduce, if not eliminate, the impacts of telecommunications facilities on City residents and the traveling public, which includes encouraging the location of Wireless Telecommunications Facilities outside of residential and agricultural areas in the City.

E.

Effectively manage Wireless Telecommunications Facilities in the public right-of-way.

F.

Manage Amateur Radio Facilities and Over-the-Air Receiving Devices in the City.

G.

Comply with applicable state and federal laws.

H.

Grant no additional rights or entitlements to Wireless Telecommunications Facilities providers or operators to construct, maintain, modify, or remove Wireless Telecommunications Facilities, other than those rights or entitlements existing under applicable state or federal law.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.020 - Applicability

The provisions of this chapter are applicable to all proposed antennas and Wireless Telecommunications Facilities and modifications as follows:

A.

All Wireless Telecommunications Facilities permit applications received by the City after the Effective Date of this Chapter as defined in Section 20.465.180 must comply with the regulations and guidelines of this Chapter.

B.

All Wireless Telecommunications Facilities that have been previously approved, but are now or hereafter expanded, modified by the replacement of materially different and/or removal of Wireless Telecommunications Facility equipment.

C.

This Chapter does not apply to:

1.

The City of San Marcos.

2.

Amateur radios licensed by the Federal Communications Commission ("FCC"), except as provided for in Section 20.465.130.

3.

Except as provided for in Section 20.465.130, Over-the-Air-Receiving Devices, as defined in Section 20.645.180.

4.

Small Wireless Facilities in the Public Rights-of-Way. Notwithstanding anything in this Chapter to the contrary, all small wireless facilities in the public rights-of-way 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 in the public rights-of-way shall comply with the City Council's policy. If the City Council policy is repealed and not replaced, an application for a small wireless facility in the public rightsof-way shall be processed pursuant to this Chapter, subject to state and federal law.

5.

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 (codified as 47 U.S.C. § 1455) are subject to a Building Permit. All eligible facilities requests shall be processed consistent with applicable law.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.030 - Permit Requirement for all Wireless Telecommunications Facilities

The provisions of this chapter apply to all public and private utilities and service providers, and to wireless telecommunication facilities of any kind located within the City. No Wireless Telecommunications Facility shall be installed, expanded, modified by the installation, change, or removal of antennas until and unless the applicant/operator has obtained the applicable City permits.

A.

Administrative Wireless Telecommunications Facility Permit. All proposed facilities within the preferred zones/locations as set forth in Section 20.465.050.A, which meet the design requirements, may be processed through an administrative Wireless Telecommunications Facility permit. The application and all submittal materials identified in Section 20.465.060 (Application Content for All Wireless Telecommunications Facilities) are to be submitted to the Planning Division for processing. The Director must provide ten (10) days written notice of the decision.

B.

Conditional Use Permit. All proposed Wireless Telecommunications Facilities located within the discouraged locations are subject to a Conditional Use Permit in accordance with this chapter provisions and San Marcos Municipal Code (SMMC) Chapter 20.520. In addition, a public workshop will be required for all proposed Wireless Telecommunications Facilities located within residential and agricultural zones.

1.

Wireless Telecommunications Facilities are permitted in a discouraged location as delineated in Section 20.465.050.B only if an applicant obtains a Conditional Use Permit following a public hearing with the Planning Commission and the applicant provides technically sufficient and conclusive proof that the proposed location is necessary to avoid an effective prohibition of service, which may include whether the

proposed location is necessary to close a significant gap and there is no less intrusive means to close that significant gap.

2.

The Planning Commission must take into consideration the following factors:

a.

Compliance with this Chapter;

b.

Height and setbacks;

c.

Proximity to residential uses;

d.

The nature of uses on adjacent and nearby properties;

e.

Surrounding topography and landscaping;

f.

Quality and compatibility of design and screening;

g.

Impacts on public views and the visual quality of the surrounding area;

h.

Availability of other facilities and buildings for collocation.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.040 - General Regulations for Wireless Telecommunications Facilities

The following regulations must serve as the general guidelines while reviewing proposed applications for Wireless Telecommunications Facilities locating within the City:

A.

Encourage the Use of Existing Structures Rather Than Introducing New Structures: The Wireless Telecommunications Facilities are encouraged to be effectively camouflaged into the existing structure when Federal requirements can be met. Wireless Telecommunications Facilities are encouraged to be designed to be in scale with surrounding building and tree heights.

B.

Height and Visibility to the Public: Wireless Telecommunications Facilities are subject to the height specification of the respective zone or higher as approved by the Planning Commission. The height of the proposed Wireless Telecommunications Facility must be designed to be the shortest minimum height technically feasible, and the facility must be placed in a location least visible to the public and least disruptive to the appearance of the host property. If the proposed Wireless Telecommunications Facility exceeds the underlying zone's maximum height, this information and supporting documentation justifying the proposed height must be submitted with the application, as well as the same supporting documentation with the proposed Wireless Telecommunications Facility constructed to the underlying zone's maximum height. Where applicable, landscaping (such as dense tree growth) or other measures to minimize visual impacts to screen the Wireless Telecommunications Facility must be incorporated into the Wireless Telecommunications Facility design.

C.

Prohibited Designs:

1.

Non-camouflaged Wireless Telecommunications Facilities are prohibited in every zone, except as provided in Section 20.465.050.A.

2.

Non-camouflaged Wireless Telecommunications Facilities include bare metal monopoles; lattice tower; guyed towers; "lollipop" mounts; and any other design that does not result in effective camouflage of the wireless communications facilities.

3.

Exempted from the prohibition in Subsection C.1 are:

a.

Wireless Telecommunications Facilities constructed on San Diego Gas and Electric high voltage power transmission towers; and the existing wireless telecommunications tower located in Double Peak Regional Park on County owned land;

b.

Wireless Telecommunications Facilities constructed on preexisting wood utility poles that are shared by two or more utilities (e.g., telephone and power; power and cable TV; etc.) that are located in the public right-ofway.

D.

Siting Requirements and Guidelines:

The proliferation of Wireless Telecommunications Facilities or publicly visible elements thereof that create or compound undesirable visual impacts on the community must be avoided. Collocation and/or clustering with existing or other planned Wireless Telecommunications Facilities is preferred whenever feasible. The maximum number of Wireless Telecommunications Facilities identified below include any combination of collocated and/or stand-alone facilities. On private property, within Residential and Agricultural zones and areas, the following provisions apply:

The limitation of the number of Wireless Telecommunications Facilities identified in this Subsection may be modified if applicant establishes that the limitation will result in an effective prohibition of service, which may include whether: (a) a significant gap in the provider's service exists, and (b) the proposed Wireless Telecommunication Facility is necessary to close a significant gap in the carrier's network coverage and there are no less intrusive alternative means to close that significant gap, and (c) no technically feasible and potentially available alternative exists to close that significant gap by the installation of one or more Wireless Telecommunications Facility sites in areas of the City enumerated in Section 20.465.050.A, and/or by the installation of facilities such as Compact Cell facilities, such as are typically located in the public right-of-way.

2.

Setbacks. Wireless Telecommunications Facilities on private property must comply with the following setbacks, measured from the property line of the subject property. For freestanding facilities, the setback must be measured from the part of the wireless telecommunications tower that is closest to the property line. For example, the setback for a faux tree facility would be measured from the end of the branch that is closest to the neighboring property.

a.

Residential Zones/Areas: Comply with the respective residential zone setback, except any freestanding Wireless Telecommunications tower located adjacent to a residential zone/area must be setback from the nearest residential property line equal to one hundred ten percent (110%) of the height of the wireless tower, or defined setback, whichever is greater;

b.

Agricultural Zones/Areas: A minimum of 100' from property line or one hundred ten percent (110%) of the height of the Wireless Telecommunications tower, whichever is greater;

c.

All Other Zones: Comply with respective zone setbacks.

3.

No net loss in required parking spaces shall occur as a result of the installation, maintenance and/or expansion of a Wireless Telecommunications Facility.

E.

Noise. Noise levels generated by a Wireless Telecommunications Facility must comply with noise standards of the underlying zone, as defined in Section 20.300.070. Appropriate siting and building measures must be incorporated in to the Wireless Telecommunications Facility design to comply with the City's noise standards. The Director may require an acoustical study if determined necessary based on the proposed design of the Wireless Telecommunications Facility.

F.

Legal Access is Required. In all applications for Wireless Telecommunications Facilities on public and private property, an applicant/operator must warrant and represent that it has the written agreement of the applicant and the owner of the property which is the subject of the application for legal access to and from the Wireless Telecommunications Facility and the applicant/operator must also warrant and represent that it will have legal access to the utilities necessary to operate and maintain the Wireless Telecommunications Facility.

ust warrant and represent that it has the written agreement of the applicant and the owner of the property which is the subject of the application for legal access to and from the Wireless Telecommunications Facility and the applicant/operator must also warrant and represent that it will have legal access to the utilities necessary to operate and maintain the Wireless Telecommunications Facility.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.050 - Location Criteria for Wireless Telecommunications Facilities

The following criteria will be utilized by the City to determine the type of wireless telecommunications facility permit that is required for a proposed wireless telecommunications facility:

A.

Preferred Locations. Wireless Telecommunication Facilities are encouraged to locate on existing buildings and structures due to aesthetics and land use compatibility. Proposed Wireless Telecommunications Facilities should be located in the following zones and areas that are the most appropriate location, which are listed in order of preference:

1.

Collocation to existing facilities located in non-residential (and non-agricultural) zones;

2.

Small wireless facilities within the public right-of-way (subject to the City Council Policy) - All Zones;

3.

Small wireless facilities on public and private utility installations (such as utility poles, water tanks, etc., that are not accessible to the public) - All Zones;

City-owned or operated property and facilities;

5.

Public Institution Zone (includes park facilities);

6.

Public and private utility installations (such as water tanks, existing communication tower near Double Peak Regional Park, etc., that are not accessible to the public);

7.

Small wireless facilities on private property in the Industrial, Business Park, or Commercial Zones;

8.

Industrial Zones and Business Park Zone (Wireless Telecommunications Facilities are limited to developed sites/parcels in the Transitional Zones);

9.

Commercial Zones (except the Senior Residential zone);

10.

Specific Plan Areas that include land use regulations for Wireless Telecommunications Facilities, which regulations shall be applied to applications for proposed Wireless Telecommunications Facilities;

11.

Mixed Use Zones;

12.

Community facilities in residential zones and areas (such as places of worship, community centers, etc.);

13.

Developed major multi-carrier sites;

14.

High voltage transmission towers;

15.

Open Space Zones.

B.

Discouraged Locations. New Wireless Telecommunication Facilities must not be located in any of the following zones or areas unless the applicant establishes that the limitation will result in an effective prohibition of service, which may include whether: (a) a significant gap in the provider's service exists, and (b) the proposed Wireless Telecommunication Facility is necessary to close a significant gap in the carrier's network coverage and there are no less intrusive alternative means to close that significant gap, and (c) no technically feasible and potentially available alternative exists to close that significant gap by the installation of one or more Wireless Telecommunications Facility sites in areas of the City enumerated in Section 20.465.050.A, and/or by the installation of facilities such as Compact Cell facilities, such as are typically located in the public right-of-way.

1.

Residential and Agricultural zones and areas, including Residential Manufactured Home Park zone (except as noted in Section 20.465.050.A (preferred locations));

2.

Within any nonresidential zone on a site that contains a legally established residential use;

Senior-Residential Zone;

Ridgeline Protection and Management Overlay Zone;

Vacant land;

Environmentally sensitive habitat;

7.

A non-small wireless facility (i.e. a macro-site) located within the public right-of-way or attached to a utility pole on a utility easement;

8.

All other areas of the City not described in Subsections A or B.

C.

If a proposed Wireless Telecommunications Facility site appears in both the preferred and discouraged location categories set forth in Sections 20.465.050.A and 20.465.050.B, above, it shall be processed as a discouraged location subject to Section 20.465.050.B.

D.

Small wireless facilities located outside of the public right-of-way, on private property, or within a utility easement shall be processed in accordance with Section 20.465.030.A; provided, however, that such facilities located in a discouraged location or less preferred location shall not be approved unless a more preferred location and/or lower ranked discouraged location are not potentially available and/or technically feasible.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.060 - Application Content for All Wireless Telecommunication Facilities

A.

Applicants are encouraged to submit digital applications for Wireless Telecommunication Facilities, including payment of any required filing fee(s). Applicants may submit printed applications in-person but all application materials must also be digital and provided on a device acceptable by the City. All digital application materials shall be unlocked and searchable Adobe PDF files or other formats as may be authorized by the City. When Wireless Telecommunication Facilities are subject to a Conditional Use Permit, all of the following items must be submitted in addition to the standard CUP submittal requirements. The Planning Director may waive any of the following or may require the submittal of additional information based on specific project factors:

1.

Written documentation demonstrating a diligent and good faith effort to locate the Wireless Telecommunications Facility in the least intrusive location in accordance with Section 20.465.050.A (Preferred Locations). The coverage objectives and reasons for selecting the proposed site and the reasons other preferred sites including, but not limited to Compact Cell facilities within the public right-of-way, were not technically or legally feasible, must be included.

2.

A description of the site selection process for the proposed Wireless Telecommunications Facility. Coverage objectives and the reasons for selecting the proposed site and the reason why other sites were rejected should be included. A description of the proposed wireless system and its consumer features must be included (i.e., cellular or PCS; voice, video, data transmissions, etc.).

3.

Site plan and elevations, drawn to scale.

4.

Geographic Service Area map that shows the location and description of the proposed facility in relation to all of the applicant's existing and potential facilities maintained by the operator in the City and if the proposed Wireless Telecommunications Facility is near the City boundary, within one-half (½) mile of the City boundary in the network associated with the gap the Wireless Telecommunications Facility is meant to close.

Visual Impact Analysis with existing before photographs and after scaled color visual simulations showing the maximum silhouette, view shed analysis, color and finish palette and proposed screening. The analysis must include photo simulations and other information of the site and surroundings necessary to determine the visual impact of the proposed facility. The simulations should demonstrate what the project would look like at its proposed location and from surrounding viewpoints, as such viewpoints are determined by the Planning Director. A map depicting where the photos were taken must be included. At his discretion, the Director may require an on-site mock-up for what are perceived by Director to be potentially highly visible or sensitive sites to adequately assess the potential visual impact of the proposed facility.

6.

Photograph of the actual facility type being proposed (i.e., photograph of an existing facility that represents the Wireless Telecommunications Facility type being proposed).

7.

Federal Communications Commission (FCC) Compliance Report. The report must provide a theoretical assessment of compliance with all applicable Federal Communications Commission radio frequency (RF) guidelines, incorporating all maximum permissible exposure limits. The report must also include a

cumulative analysis of all the wireless telecommunications located on and/or adjacent to the project site, identifying total exposure from all facilities and demonstrating compliance with all FCC guidelines. The qualifications of the person who prepared the required FCC compliance report must also be submitted and must include such information as education and professional qualifications, experience preparing studies, history demonstrating compliance with FCC guidelines, etc.

8.

Identify Proposed Height of the Wireless Telecommunications Facility. Evidence must be submitted that demonstrates the proposed facility has been designed to the minimum height required from a technological standpoint for the proposed site. The provider must also submit evidence, as applicable, if facility designed at a lower height combined with multiple sites can accomplish network coverage.

9.

Noise Information. Information submitted with the Initial Study must include manufacturer's specifications for all noise producing equipment (including without limitation air conditioning units and back-up generators whether permanent or temporary) as well as a depiction of the proposed equipment location in relation to the property lines.

10.

Maintenance Plan. The anticipated maintenance and monitoring program for the proposed antennas, equipment, and landscaping must be described. If required by the Director, the applicant, at its own cost and expense, must have such plans prepared, reviewed, and/or certified by a California Licensed Landscape Architect or Arborist, as determined by the Director.

Conceptual Landscape Plan. Plan must identify all proposed landscaping, screening and irrigation. Plan must describe and depict how the materials will screen the site once fully grown. Plans must be prepared by a California Licensed Landscape Architect and must include new and existing plants and trees on site, size, and species (common and botanical name). Plans must also identify any proposed plant and tree removal.

12.

Plans must identify the lease area of the proposed facility and legal access. Applicant must submit documentation that it will have legal access to the subject parcel.

13.

A statement signed by the person with legal authority to bind the applicant attesting under penalty of perjury to the accuracy of the information provided in the application.

14.

A written statement of the applicant's willingness to allow other carriers to co-locate on their facilities wherever technically and economically feasible and aesthetically desirable.

15.

If the site is not in a preferred location (Section 20.465.050.A) or is in an area that is discouraged by Section 20.465.050.B, the applicant must provide evidence that no location in a preferred zone or location can accommodate the applicant's proposed facility. Clear and convincing evidence must be in the form of a map of the geographic area and a discussion of sites within the preferred locations that could potentially serve the same area as the proposed site, and the reason(s) each such preferred location site was not technologically or legally feasible.

16.

Deposit fees for Independent Expert Consultant Review selected by the City will be required for all wireless telecommunication facilities. The cost of the review must be paid by the applicant through a deposit at the time of application submittal. The Director shall determine the deposit amount estimated to cover the full cost of the independent review, including, but not limited to, evaluation of information submitted by the applicant to ensure compliance with land use, legal compliance, and technical requirements of this chapter as well as attendance at any meetings or hearings determined necessary by the Director. Expert consultant costs are independent of the processing fees for a Wireless Telecommunications Facility permit or a Conditional Use Permit. The applicant must pay all fees incurred for the City's expert consultant services prior to the public hearing or administrative decision, whichever is applicable to the application process.

17.

All provisions of Chapter 20.505 (Noticing and Public Hearings) are applicable to applications processed under this Chapter. In the event the site of the proposed Wireless Telecommunications Facility is not visible from the public right-of-way, the applicant must install, at its cost and expense, a "Notice of Permit

Application" sign within the public right-of-way in a visible location to be determined by the Director. Location of the off-site sign shall be within the public notice radius for the application.

B.

All Wireless Telecommunications Facility permit applicants are encouraged to request an Informational Meeting with the Planning Division. All Informational Meetings shall be voluntary. If an Informational Meeting is requested by the applicant, the Informational Meeting shall not start the FCC Shot Clock or be counted as a shot clock day.

C.

All Wireless Telecommunication Facility permit applications must be submitted to the City at a pre-submittal review appointment scheduled with City staff. Prospective applicants may generally submit one application per appointment, or up to five individual applications per appointment as a batch. City staff shall use reasonable efforts to offer an appointment within five working days after the City receives a written request from a potential applicant. Any purported application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed, whether the City retains, returns, or destroys the materials received.

D.

Within thirty (30) days following the Effective Date of this Chapter, the Director shall develop a standardized application for use thereafter by Wireless Telecommunications Facilities applicants. The initial application form shall contain at a minimum the information described in Subsection A, above. From time to time thereafter the Director, without further authorization from the City Council, may modify the application form to respond to changes in law or technology.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.070 - Design and Development Standards

The following design and development standards are applicable to all Wireless Telecommunications Facilities and will be considered by the City while reviewing proposed Wireless Telecommunications Facility applications.

A.

Design and Development Standards for all Facilities:

1.

All facilities must be designed to minimize the visual impact to the greatest extent feasible by means of placement, screening, landscaping with native species (whenever feasible), and camouflage, and to be compatible with and integrated into existing architectural elements, building materials and other site characteristics. The applicant must use the least visible and physically smallest antennas possible to accomplish the coverage objectives. Such techniques must be incorporated to make the installation, operation and appearance of the Wireless Telecommunications Facility visually inconspicuous, to prevent

the Wireless Telecommunications Facility from dominating the surrounding area, and to hide the installation from predominant vies from surrounding properties.

2.

All facilities must be designed to include camouflage design techniques except as provided in Section 20.465.050.A to visually and operationally blend into the surrounding area in a manner consistent with community character and existing development. The Wireless Telecommunications Facility must also be designed to be appropriate for the specific site (i.e., it should not stand out unduly from its surrounding environment, such as a faux tree standing alone in a field or standing at greater height (five feet or more) than other trees on the site).

3.

Creative and artistic designs, and the smallest size for the Wireless Telecommunications Facility are preferred to achieve the least visual impact on the community.

4.

All antenna components and accessory wireless equipment must be treated with exterior coatings of a color and texture to match the predominant visual background and/or existing architectural elements so as to visually blend in with the surrounding development. Subdued colors and non-reflective materials that blend with surrounding materials and colors must be used.

5.

No signs, striping, graphics, or other attention getting devices are permitted on a Wireless Telecommunications Facility or ancillary facilities except for traffic control signage/devices, warning and/or safety signage with a surface area of no more than three (3) square feet per sign, or otherwise with prior written approval by the City Engineer. Such signage must be affixed to a fence or ancillary facility and the number of signs is limited to no more than two unless a greater number is required by law.

6.

Each Wireless Telecommunications Facility must be identified by a permanently installed plaque or marker (no larger than four (4) inches by six (6) inches) clearly identifying the addresses, email contact information, and 24-hour local or toll-free contact telephone numbers for both the permittee and the agent responsible for the maintenance of the wireless telecommunications facility. The contact information must be maintained with current contact information specified above.

7.

In cases where the Wireless Telecommunications Facility is located in a City park, the wireless telecommunications facility must be designed and located in such a manner as to avoid adverse visual impacts. Such locations must use design techniques such as, but not limited to, type of facility, camouflaging, screening, and landscaping.

All base station equipment must be enclosed so as not to be visible to the public. Barbed wire fencing and/or razor wire is prohibited.

9.

Security Lighting. Security lighting must be kept to a minimum and must only be triggered by a motion detector.

10.

Aircraft Beacon Lighting. Beacon lighting is prohibited unless required by the FCC or Federal Aviation Administration (FAA). Beacon lighting must be included when measuring the total height of the antenna. Beacon lighting must employ effective designs and equipment to reduce to the maximum extent possible downward light leakage while still complying with FCC or FAA requirements.

11.

The installation of any Wireless Telecommunications Facility and/or related equipment must not create or cause a violation of the Americans With Disabilities Act, and must be compliant with all applicable building and electrical codes as well as the latest iteration of tower safety code, the terms and provisions of which are incorporated herein by reference. Cabinets and other equipment must not impair pedestrian use of sidewalks, pedestrian pathways, nor inhibit equestrian of pedestrian activities on public or private trail systems and must be screened from the sidewalk by landscaping, undergrounding or other means excluding walls and fences.

12.

Proposed facilities located in the Ridgeline Protection and Management Overlay zone are subject to the provisions of the Ridgeline Protection and Management Overlay Zone. No facility that is proposed in the Overlay zone shall be approved unless the wireless telecommunications facility blends with the surrounding existing and man-made environment to the maximum extent possible and a finding is made that no other location is technically or legally feasible.

B.

Building- and Structure-Mounted Facilities:

1.

Screening materials must match in color, size, texture, proportion style, and quality with the exterior design and architectural character of the building or structure and the surrounding visual environment.

2.

Facility components, including all antenna panels, may be mounted either inside the building or structure, or behind the proposed screening elements of the building or structure. Antennas may be required to be located entirely within an existing or newly created architectural feature so as to be completely screened from view.

3.

Antennas and associated facilities mounted to a building must not be visible.

4.

Roof-mounted antennas must be constructed at the minimum height possible to serve the operator's service area and must be set back as far from the edge of the building as possible or otherwise screened to minimize their visibility. Existing visual obstructions or clutter on the roof or along the roof line should, in a commercially practical matter, be removed or screened (such as with a parapet or other architectural feature that serves as a rooftop screen) as a precursor to the new wireless installation.

5.

When required by the City, antenna panels must be located and arranged on the building or structure so as to camouflage the appearance of the equipment.

6.

If permitted, Wireless Telecommunications Facilities proposed on residential buildings must only be allowed if effectively disguised as a typical and appropriately sized residential feature (i.e., a chimney, a dormer, etc.).

C.

Ground-Mounted Camouflaged Monopoles:

1.

Camouflaged monopole installations (e.g., faux trees; faux windmills; faux water tanks, etc.) must be designed and situated so as to utilize existing natural or man-made features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening.

2.

The camouflage design techniques must result in an installation that either will naturally blend in with the predominant visual backdrop or will disguise the Wireless Telecommunications Facility. If this is accomplished with landscaping, the applicant must develop a landscape and irrigation plan, as well as a maintenance plan for maintaining the required landscaping for so as long as the Wireless Telecommunications Facility exists.

3.

Antennas and all equipment related to and installed near the antennas must be mounted as close as possible to the camouflaged monopole so as to improve the overall facility appearance, including for example only being enclosed within the branch canopy of a faux tree and using antenna covers to blend into the faux tree design, or enclosed within the faux windmill or faux water tank.

D.

Miscellaneous Facilities:

1.

Designs that mimic natural elements and that are natural in appearance are encouraged and should incorporate natural colors applied in a natural looking way; inclusion of related forms and textures as they would normally be found in nature; and antenna or facility elements form in, clad by, or screened by natural looking features should be encouraged.

2.

A monorock and/or monoshrub will be properly screened only if it is located in a setting that is compatible with the proposed screening method. For a monoshrub, other vegetation comparable to that replicated in the proposed screen must be prevalent in the immediate vicinity of the Wireless Telecommunications Facility site and the addition of new comparable living vegetation maybe necessary to enhance the monoshrub screening. For a monorock, the proposed screen must match in scale and color other rock outcroppings in the general vicinity of the proposed site. A monorock screen may not be considered appropriate in areas that do not already have appropriately-sized natural rock outcroppings.

E.

Public Right-of-Way Installations That Are Not Classified as Small Wireless Facilities (i.e., Macro-sites):

1.

Location: Facilities must be designed to be as visually unobtrusive as possible and to minimize abovegrade physical installations in the right-of-way. All antennas, mast arms, equipment, and other facilities must be sized to minimize visual clutter. Facilities must be sited to avoid or minimize the negative aesthetic impacts to the right-of-way. To accomplish this goal, all Wireless Telecommunications Facilities must be designed with the intent of locating and designing such facilities in the following manner and order of preference (listed in order of preference):

a.

Antennas:

i.

On an existing utility pole;

ii.

On an existing street light or traffic signal standard;

iii.

On a new light-standard type utility pole or replacement street light pole;

iv.

On a new structure, subject to prior written approval by the City Engineer, that does not interfere with the intended current or future use of the public right-of-way.

b.

Equipment:

i.

Within a flush-to grade underground equipment vault;

ii.

In an existing ground-mounted (grade level) equipment cabinet, with no expansion or additional cabinets to be added;

iii.

Mounted on the subject pole;

iv.

Within a new equipment enclosure mounted at grade, however, this is strongly discouraged. Therefore, if the applicant proposes to mount new equipment at grade, a written explanation must be provided describing why no preferred mounting options are feasible.

c.

Location:

i.

Within the public right-of-way which does not require the removal of existing trees, narrowing of sidewalks, reduction in the size of any landscape planters, and does not require any modifications to the existing location of any infrastructure within the public right-of-way;

ii.

Within the a landscaped public right-of-way area which requires only minor alterations to the landscaping and/or infrastructure;

iii.

Wireless Telecommunications Facilities (including antennas, equipment and related infrastructure) are prohibited in all center street medians, except when the City determines such installation will be the least intrusive means to provide coverage and the City determines sufficient space is available for such installation;

iv.

Position of structure antennas are attached to shall not obstruct any ADA required path of travel.

2.

No new Wireless Telecommunication Facility may be installed in a public right-of-way where there are no overhead utility facilities unless the California Public Utilities Commission has authorized the applicant to install such facilities and then only if the applicant demonstrates by technically sufficient and conclusive proof that a new pole is the only means to provide coverage.

3.

For Wireless Telecommunications Facilities proposed within the public right-of-way, the applicant must obtain and comply with encroachment permit and right-of-way permit from the City's Engineering Division of the Public Works Department, and pay all deposits and fees associated with all required permits. All requirements of this Chapter apply to Wireless Telecommunications Facilities proposed for location in the public right-of-way. Additionally, the installation of Wireless Telecommunications Facilities in the public right-of-way shall be subject to and consistent with California Public Utilities Code §§ 7901 and 7901.1.

4.

Any Wireless Telecommunications Facility to be mounted in whole or in part on City owned structures within the right-of-way shall require a written License Agreement executed by the City Manager and approved in form by the City Attorney. The City's approval of Wireless Telecommunications Facilities on City owned structures is discretionary and proprietary in nature, and may be denied by the City for any or no reason.

5.

No part of a Wireless Telecommunications Facility shall alter vehicular circulation or parking within the rightof-way or impede vehicular, bicycle, or pedestrian access or visibility along the right-of-way. The Wireless Telecommunication Facility must comply with the Americans With Disabilities Act and every other local, state, and federal law and regulation. No permittee may locate or maintain a Wireless Telecommunications Facility in a manner that causes unreasonable interference. Unreasonable interference means any use of the right-of-way that disrupts or interferes with its use by the City, the general public, or other persons authorized to use or be present upon the right-of-way, when there exists an alternative that would result in less disruption or interference. Unreasonable interference includes any use of the right-of-way that disrupts vehicular or pedestrian traffic; any interference with public utilities; and any other activity that will present a hazard to public health, safety, or welfare.

6.

Wireless Telecommunications Facilities must be located underground to the fullest extent possible. Underground vaults and vault covers must be rated for vehicular loading and employ flush-to-grade access portals.

7.

Wireless telecommunications facility antennas must be attached to existing or replacement poles (such as a street light pole or public-utility pole) or other vertical structures already located in the right-of-way. The installation of new poles or vertical structures will be permitted only if the applicant demonstrates the

prohibition on new poles or vertical structures will cause an effective prohibition. For proposed new street light or utility pole installations, the design of the utility pole or street light must be consistent with other utility poles or street lights in the same neighborhood to the maximum extent possible and must be located in such a manner to minimize potential visual and compatibility impacts with adjacent residential properties. All antennas and related equipment, where feasible, must be screened behind a cylindrical screening device and all must be painted or finished to match the pole. A street light or public utility pole installed to replace a pre-existing pole in the same location will be considered a new installation if the replacement pole has a larger diameter or taller than the pole it replaces). The location of new facilities should be avoided along the front yard or residential properties, to the greatest extent possible.

8.

Equipment located above the surface grade in the right-of-way, including, but not limited to, that on streetlight standard must consist of small equipment components that are compatible in structure, scale, function, and proportion to the street light on which they are mounted. Equipment must be painted or otherwise finished to be visually compatible with lighting equipment.

9.

Under no circumstances will the City be required to approve the installation of more than one (1) wireless telecommunications facility on any single street light or any City-owned structure unless the City in its sole discretion deems it technically and aesthetically feasible, to do so.

10.

Under no circumstances will the City be required to extend City facilities upon which telecommunications facilities may be located including, without limitation, street lights, to areas where they currently do not exist. Such facilities shall be extended into areas where they currently do not exist only if the City in its sole discretion approves of such expansion and the applicant pays the full cost of the construction, installation, and ongoing maintenance, replacement, and operation (including electricity costs) of such extended facilities. In addition to the foregoing, to the extent that existing facilities upon which telecommunications facilities can be located must be modified or retrofitted to accommodate a Wireless Telecommunications Facility, such modification or retrofit must be made at the applicant's sole cost and expense. Additionally, the primary purpose or use of any such replacement pole, structure, or facilities must remain as the primary function for which they were initially constructed, and the installation of any Wireless Telecommunications Facility thereon must be a secondary use or purpose.

11.

Height:

a.

Wireless Telecommunication Facilities proposed as new streetlights or utility poles must match the height and design of existing streetlights and/or utility poles in the same neighborhood.

b.

All equipment located above any sidewalk or pedestrian or bicycle path must have a minimum vertical clearance of eight (8) feet or greater as required under CPUC General Order 95.

c.

New vertical infrastructure containing antennas shall be no higher than five (5) feet above the height of other vertical infrastructure in the vicinity of the facility, such as but not limited to street lights and traffic signals. Antennas on existing vertical infrastructure shall not exceed five (5) feet above the height of the structure plus any vertical clearance as required under CPUC General Order 95.

d.

Multiple street light poles may be necessary to obtain the desired coverage.

12.

Appropriate separation must be provided between existing utility poles and new Wireless Telecommunications Facilities to avoid visual clutter and to maintain the existing community character of the surrounding neighborhood.

13.

Proposed wireless telecommunications facility antennas must be vertically mounted to the pole as close as technically feasible. Proposed collocated antennas on an existing Wireless Telecommunications Facility must use similar screening methods and camouflage techniques and be mounted in the same manner as the approved or existing Wireless Telecommunications Facility.

14.

Panel antennas must be mounted to the pole or to an antenna mount and must not extend more than six (6) inches from the pole in any direction. For existing wood utility poles, a horizontal antenna mount cannot extend more than five (5) feet horizontally from the pole, except where greater extension is required to comply with health and safety regulations.

15.

Antennas and associated equipment must, at the City's option, either be enclosed in a radome camouflage enclosure or painted and textured to match the color and material of the surface of the pole which they are attached.

16.

No more than four (4) panel antennas or two omni-directional (whip antennas) may be mounted on any utility pole or structure.

17.

Proposed facilities must be located and designed for co-location to the maximum extent feasible. There shall be no more than two (2) collocated facilities located on any utility pole or street light.

No faux or otherwise nonfunctioning street lights, decorative elements, signs, clock towers, or artificial trees or shrubs or other nonfunctioning screening elements made to resemble other objects will be permitted in the public right-of-way.

F.

Equipment Enclosures:

1.

Base Station Equipment Location: All base station equipment must be located in the following manner and order of preference (listed in order of preference):

a.

Underground if feasible;

b.

Within an existing building whenever feasible;

c.

Within a new building;

d.

Within a solid-walled enclosure.

2.

Height and Camouflage Design of Equipment Enclosures:

a.

Enclosures may not exceed ten (10) feet in height as measured from the base of the foundation unless a greater height is required to maximize architectural integration.

b.

Any visible fencing, GPS antenna, or other similar ancillary equipment must be painted and textured to match the surrounding area in order to minimize visibility.

3.

Operational Standards:

a.

All accessory equipment associated with the operation of a wireless telecommunications facility must be located within a building enclosure or underground vault that complies with the development standards of the underlying zone in which it is located. Design of the equipment enclosure must be architecturally compatible with the surrounding environment and structures.

4.

Screening of Equipment:

a.

All equipment (including support structures, mounts, equipment) must be screened from view of adjacent properties or public rights-of-way to the maximum extent possible.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.080 - Maintenance and Operation Standards

A.

Maintenance. All facilities, landscaping, and related equipment must be maintained in good working condition and must be maintained free of litter, debris, graffiti and any form of vandalism.

B.

Facility Maintenance. Damaged equipment and damaged, dead or decaying landscaping must be replaced within 30 days of notification by the City or discovery by operator. Replacement of landscaping that provides facility screening must be in conformance with the approved landscape plan (i.e., material must be consistent with the approved size (including height)), type, and screening capability at the time of planting as the material being replaced.

C.

Maintenance Hours. Routine maintenance of Wireless Telecommunications Facilities located in residential and agricultural zones or within 100 feet of a residential zone and agricultural zones may be conducted only during the hours of 8:00 a.m. and 5:00 p.m. Pacific Time weekdays, not including holidays. In other areas, routine maintenance may be conducted at any time. Emergency repairs and maintenance shall be conducted only in the cases of power outages and equipment failure or malfunction. The City shall determine when routine cycling of generators is permissible.

D.

Graffiti Abatement. Graffiti must be removed within seventy-two (72) hours of notice from neighbors and/or the City.

E.

Flag Condition. If a flagpole is used for camouflaging a facility, flags must be flown and properly maintained at all times. Display of the United State Flag must fully comply with 4 U.S.C. §§ 6—8.

F.

Contact Information. All equipment cabinets/enclosures and enclosure entry must display in permanent and legible form the site operator's name, a local or toll free telephone number answered 24 hours every day of the year, and site identification number.

G.

Security Lighting. Security lighting must be kept to a minimum and must only be activated by a motion detector or hand-set timer. The motion detector must automatically turn off the security lighting no more than fifteen (15) minutes if no movement is detected within the sensor range. The hand-set timer must automatically turn off the security lighting no more than sixty (60) minutes after setting.

H.

Noise. All noise producing equipment associated with a Wireless Telecommunications Facility (including without limitation temporary and permanent power generators and air conditioners) must be designed and operated consistent with City noise standards (Section 20.300.070).

I.

FCC Compliance.

1.

Validation of Proper Operation. Prior to unattended operations, the applicant for approvals with respect to any wireless telecommunications facility site that is not "categorically excluded" as that term is defined in the FCC Office of Engineering and Technology Bulletin 65 ("FCC OET Bulletin 65"), as amended or replaced from time to time, must submit to the City, at its own cost and expense, a detailed technical report prepared by a qualified engineer verifying that the operation of the wireless telecommunications facility is in conformance with the uncontrolled/general population RF exposure standards established by the FCC OET Bulletin 65. The applicant, at its own cost and expense, must pay the cost of the City's review or peer review of said report. To the extent that a wireless carrier has one or more reports on the wireless telecommunications facility, all reports must be provided to the City.

2.

The applicant, operator, or owner of CUP approvals with respect to any wireless telecommunications facility, must, at its own cost and expense, submit an annual CUP compliance report in conjunction with subsection I.1, above. Said report must include documentation of the status of compliance with all conditions of approval and must include date stamped photographs of existing conditions of the wireless telecommunications facility and any associated screening requirements.

3.

The wireless telecommunications facility must comply with all applicable current and future FCC regulations without further action by the City. It is the responsibility of the applicant to contact the City acknowledging any changes in regulations that would affect the wireless telecommunications facility.

4.

Subject to applicable laws, the City may require all safety signage be in both English and Spanish languages.

J.

Performance Bond. Prior to issuance of a building permit or encroachment permit, the applicant or owner/operator of the wireless telecommunications facility must pay for and provide a performance bond, which shall be in effect until all facilities are fully and completely removed and the site is reasonably returned to its original condition. The purpose of the bond is to cover the applicant's or owner/operator obligation under the conditions of approval and the SMMC. The bond coverage must include, but not be limited to, removal of the wireless telecommunications facility, maintenance obligations and landscaping obligations. (The amount of the performance bond shall be set by the Director on a case-by case basis and in an amount reasonably related to the obligations required under this Chapter and all conditions of approval, and must be specified in the conditions of approval.)

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.090 - Abandonment or Discontinuance of Use

A.

Notification. All operators who intend to abandon or discontinue the use of any wireless telecommunications facility must notify the City of such intentions no less than sixty (60) days prior to the final day of use. Removal of the wireless telecommunications facility must comply with applicable health and safety regulations.

B.

Removal of Facility. Wireless Telecommunications Facilities that are no longer operating must be removed at the expense of the applicant/operator/owner no later than one hundred eighty (180) days after the notification by the City of the discontinuation of use. Upon completion of the abandonment, the site must be restored to its original condition as much as reasonable and practical, at the expense of the applicant, operator, or owner. Disuse for one hundred eighty (180) days or more constitutes a voluntary termination of any land use entitlement under this Chapter or any predecessor of this Chapter.

C.

Penalty for Failure to Remove. A Wireless Telecommunications Facility not removed within the required one hundred eighty (180) day period is a violation of the SMMC. In the event the City removes a disused facility upon the failure of the applicant, operator, and property owner to do so in a timely manner, the applicant, operator, and property owner shall be jointly and severally liable for the payment of all costs and expenses the City incurs for the removal of the facilities, including legal fees and costs.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.100 - Duration of Permit

A.

A wireless telecommunications facility permit shall be issued a period of ten (10) years from the date of issuance of the grading permit, building permit and/or encroachment permit, whichever comes first, unless a shorter term is determined by the City to be necessary for public safety reasons or substantial land use reasons. The City may establish a build-out period for a site after which time any portion of the permit for the site as permitted but not constructed shall require the applicant to apply for a new permit under the terms of this Chapter as it exists at the time of the new permit application.

B.

In accordance with this Chapter, the permittee may apply for a renewal of its wireless telecommunications facility permit or Conditional Use Permit. There is no limit to the number of times the sunset date for a facility may be extended. Upon a request for either an extension or an amendment of a Conditional Use Permit, the wireless telecommunications facility will be reevaluated to assess the potential impact of the wireless telecommunications facility on the adjacent properties, the record of maintenance and performance with reference to the conditions of approval, and consistency with this Chapter. Additionally, the City should review the appropriateness of the existing facility's technology, and the applicant must document that the wireless telecommunications facility maintains the technology that is the smallest, most efficient, and least visible and that at the time of the application submittal, there are no appropriate and available locations for the wireless telecommunications facility, such as the opportunity to collocate or relocate to an existing building.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.110 - As-Built Photographs Submittal Requirement

The applicant/operator/owner must submit date stamped as-built photographs (in digital format as selected by the City) of the wireless telecommunications facility within thirty (30) days of the completion of the installation of the wireless telecommunications facility, visually detailing all of the installed equipment. Said photographs will be used in conjunction with physical site inspection to substantiate compliance with the approved plans, and for any other lawful purpose. Final building permit release will only be granted upon satisfactory evidence, the wireless telecommunications facility was installed in compliance with the approved plans.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.120 - Notification of Change of Ownership/Operator

Upon transfer of an authorization to operate a wireless telecommunications facility or any of the rights under said authorization the owner or operator must, within thirty (30) days, provide written notification to the Director of the date of transfer, nature of the transfer in question, and the identity and contact information of the transferee.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.130 - Amateur Radio and Over-the-Air Receiving Devices

A.

Amateur Radio: The following provisions apply to all antennas which are a part of a licensed amateur radio station, in accordance with FCC Order "PRB-1" (101 FCC 2d 952 (1985)) and California Government Code § 65850.3:

1.

Prohibited Location. Amateur radio antennas and amateur radio antenna structures, including antenna tower guys, antennas, and attachments thereto, are prohibited in front yard areas from the building to the front property line or within the required front yard setback, whichever is greater.

2.

Setbacks. Amateur radio antenna towers and all amateur radio antennas must comply with the front, side, and rear setbacks for the zone. No portion of an amateur radio antenna tower or antenna shall extend across or above any parcel other than the parcel upon which it is installed.

3.

Permits. Only a City-issued building permit is required for an Amateur Facility to be used by authorized amateur radio station licensed by the FCC, as long as the maximum height of such Amateur Facility including all elements (including without limitation, antennas, masts, booms, arms, cables, and rotors attached thereto) does not exceed the greater of:

a.

Fifty-one (51) feet above existing ground level which the antenna or antenna tower is affixed, or

b.

Fifteen (15) feet above the height of the building to which the antenna and/or mast is attached prescribed for the zone in which the antenna is located.

4.

Tall Installations. An Amateur Facility exceeding the maximum height set forth in Section A.3 must be required to obtain an administrative wireless telecommunications facility permit. In order to issue such an administrative wireless telecommunications facility permit for an amateur radio facility, the Director, in addition to any other required findings, must also find that:

a.

The application is submitted by an amateur radio operator licensed by the FCC; and

b.

The permitted location is listed by the FCC as the address associated with the amateur radio operator or is the residence of the amateur radio operator; and

c.

Allowance of the additional height and/or width is necessary to reasonably accommodate amateur radio service communications; and

d.

Based on technical showings by the applicant, no lesser antenna heights and no alternative antenna structures or antenna design would reasonably accommodate the amateur radio operator's needs; and

e.

The conditions of approval, if any, constitute the minimum practicable regulation to accomplish the City's goal of promoting public health, safety, and welfare; and

f.

The conditions of approval, if any, do not preclude amateur radio service communications; and

g.

The Amateur Facility as proposed will comply with all adopted safety codes of the City.

5.

Height. Height is measured as follows:

a.

Ground-mounted Amateur Facilities (which may include those side-braced to a building). The height of the antenna and support structure must be measured from the natural undisturbed ground surface below the center of the base of the antenna support (i.e., the amateur radio tower) to the top of the tower or from the top of the highest antenna or piece of equipment attached thereto, whichever is higher.

b.

Building-mounted Amateur Facilities. The height of the antenna and support structure must be measured from the highest point of the building roof on which the Amateur Facility is mounted, to the top of the Amateur Facility.

6.

Permit Inspection. Amateur Facilities are subject to City building permit requirements, as well as all construction and post-installation permit inspections by the City to determine compliance therewith.

7.

Changes to Permitted Amateur Facility. Within fourteen (14) days following any modifications or additions to permitted Amateur Facilities pursuant to this Chapter, the applicant must provide written notice to the City of the modifications using a form provided by the City.

8.

Permits Personal. All permits issued by the City for amateur radio facilities must be personal to the applicant, are not transferrable unless the transferee would on its own qualify for the same permit, and must not run with the land.

B.

Over-the-Air Receiving Devices: The following provisions must apply to all antennas which are Over-the-Air Receiving Devices ("OTARD") in accordance with the FCC Rule (47 C.F.R. § 1.4000 (1996)):

1.

Prohibited Location. An OTARD Facility, including an OTARD Structure, guys, antennas, and attachments thereto, are prohibited in front yard areas from the building to the front property line or within the required front yard setback, whichever is greater, where the OTARD Facility may fall onto a sidewalk or roadway.

2.

Setbacks. An OTARD Facility must comply with the front, side, and rear setbacks for the zone. No portion of an OTARD Facility can extend across or above any parcel other than the parcel upon which it is installed.

3.

Permits. Only a City-issued building permit is required for an OTARD Facility. There is no cost for a Cityissued building permit for an OTARD Facility. The building permit must be issued within fourteen (14) calendar days following submission by the Applicant to the City of a complete application that is not subject to the requirements of Section B.5 below.

4.

Maximum Height. The maximum height of such OTARD Facility including all elements (including without limitation, antennas, masts, booms, arms, cables, and rotors attached thereto) must not exceed the greater of:

a.

Twenty-five (25) feet above existing ground level which the antenna or antenna tower is affixed;

b.

Fifteen (15) feet above the height of the building to which the antenna and/or mast is attached prescribed for the zone in which the antenna is located;

c.

A lower height as reasonably determined by the City for any proposed OTARD installation in a historic district of the City.

Tall Installations. An OTARD Facility exceeding the maximum height set forth in Section B.4 is required to obtain an administrative wireless telecommunications facility permit. There is no charge for an administrative wireless telecommunications facility permit for an OTARD Facility. The building permit must be issued within thirty (30) calendar days following submission by the Applicant to the City of a complete application that is subject to the requires of this Section B.5 and the Director's determination that the following findings are made:

a.

Allowance of the additional height and/or width is necessary to reasonably accommodate the applicant using an OTARD; and

b.

Based on technical showings by the applicant, no lesser antenna heights and no alternative antenna structures or antenna design would reasonably accommodate the applicant's reasonable needs to receive a non-distant television signals; and

c.

The conditions of approval, if any, constitute the minimum practicable regulation to accomplish the City's goal of promoting public health, safety, and welfare; and

d.

The conditions of approval, if any, do not preclude the applicant from using the OTARD; and

e.

The OTARD Facility as proposed will comply with all adopted safety codes of the City.

6.

Height. Height is measured as follows:

a.

Ground-mounted OTARD Facility (which may include those side-braced to a building). The height of the antenna and support structure must be measured from the natural undisturbed ground surface below the center of the base of the antenna support (i.e., the OTARD tower) to the top of the tower or from the top of the highest antenna or piece of equipment attached thereto, whichever is higher.

b.

Building-mounted OTARD Facility. The height of the antenna and support structure must be measured from the highest point of the building roof on which the OTARD Facility is mounted, to the top of the OTARD Facility.

Permit Inspection. OTARD Facility is subject to City building permit requirements, as well as all construction and post-installation permit inspections by the City to determine compliance therewith.

8.

Changes to Permitted OTARD Facility. Within fourteen (14) days following any modifications or additions to permitted OTARD Facility pursuant to this Chapter, the applicant must provide written notice to the City of the modifications using a form provided by the City.

9.

Permits Run with the Land. All permits issued by the City for OTARD facilities run with the land.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.140 - Indemnification

To the maximum extent permitted by applicable law, an applicant shall at all times defend, indemnify, protect, save harmless, and exempt the City, the City Council, its officers, agents, servants, attorneys, and employees, and volunteers from any and all penalty, damage, or charges, excepting only punitive damages, arising out of claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, that arise out of, or are caused by, the construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal, or restoration of telecommunications facilities within the City based on any act or omission of an applicant, its agents or employees, contractors, subcontractors, independent contractors, or representatives. With respect to the penalties, damages, or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included as those costs that shall be recovered by the City.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.150 - Obligation to Comply with Chapter

An applicant shall not be relieved of its obligation to comply with every provision of this Chapter, any permit issued hereunder or any applicable law or regulation, by reason of any failure of the City to enforce or prompt compliance.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.160 - Appeals

An appeal from the decision of the Director or the Planning Commission made in the administration or enforcement of this Zoning Ordinance pertaining to installations that are pursuant to Section 20.465.030.A (Administrative Wireless Telecommunications Facility Permit) of this Zoning Ordinance may be made by the carrier or any person having an interest in the property that is the subject of the decision, as provided in Chapter 20.545 (Appeals and Revocations). All appeals related to a decision made through the CUP process must be consistent with the standards and process of Chapter 20.545 (Appeals and Revocations).

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.170 - Enforcement

Enforcement of the provisions of this Chapter will be through civil remedies in accordance with Chapter 1.12 of the San Marcos Municipal Code.

(Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

Section 20.465.180 - Definitions

For the purposes of this Chapter, the following words, terms, phrases, and their derivations have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular number include the plural number.

Accessory Wireless Equipment means any equipment associated with the installation of a wireless telecommunications facility including, but not limited to, cabling, generators, air conditioning units and equipment cabinets.

Amateur Radio Tower means a freestanding or building-mounted structure, including any base, tower or pole, antenna and appurtenances, intended to facilitate amateur radio communication by any person holding a valid amateur radio license issued by the Federal Communications Commission.

Antenna means any system of wires, poles, rods, reflecting discs, panels, microwave dishes, whip antennas or similar devices used for the transmission or reception of electromagnetic waves, including antennas relating to Personal Wireless Services as defined by Congress or the Federal Communications Commission, when such system is either external to or attached to the exterior of a structure (buildingmounted or rooftop-mounted), or ground-mounted. Antennas include devices having active elements extending in any direction, and directional beam-type arrays mounted upon and rotated through a vertical mast or tower interconnecting the beam and antenna support, all of which elements are deemed to be a part of the antenna.

Antenna Height is the vertical distance measured from the ground surface at the grade to the tip of the highest point of the proposed structure (including a beacon if required by the FAA).

Antenna Support means any pole, telescoping mast, tower tripod or any other structure that supports a device used in the transmitting and/or receiving of electromagnetic waves.

Antenna Tower means a freestanding or building-mounted structure, including any supporting base for the tower or pole, antenna and appurtenances intended to facilitate wireless telecommunications.

Applicable Law means all applicable federal, State and local law, ordinances, codes, rules, regulations and orders, as the same may be amended from time to time.

Applicant means a person filing an application in compliance with the Chapter who is:

The owner or lessee of property;

A party who has contracted to purchase the property contingent upon that party's ability to acquire the necessary approvals required for that action in compliance with the Zoning Ordinance, and who presents written authorization from the property owner to file an application with the City; or

3.

The agent of either of the above who presents written authorization from the property owner to file an application with the City.

Base Station means the electronic equipment, equipment enclosures, cables, and antennas minimally necessary to transmit and/or receive the wireless communications authorized by the Wireless Telecommunications Facility permit.

Camouflage Design Techniques means any measures used in the design and siting of Wireless Telecommunications Facilities with the intent to minimize or eliminate the visual impact of such facilities to surrounding uses. Such techniques may include, but are not limited to, one or more of the following:

1.

Screening elements to camouflage, disguise, or otherwise hide the Wireless Telecommunications Facilities from view from surrounding uses.

2.

Painting or coloring, or both, to blend into the predominant visual backdrop.

3.

Locating the wireless telecommunications facility to utilize existing features (buildings, topography, vegetation, etc.) to screen, disguise, camouflage, or hide the wireless telecommunications facility.

4.

Utilizing simulated natural features such as trees or rocks.

5.

Providing a wireless telecommunications facility of a size that, as determined by the Director, or the Director of Public Works, in the case of encroachment permits, is not visually obtrusive such that any effort to screen the wireless telecommunications facility would create greater visual impacts than the wireless telecommunications facility itself.

Examples of camouflaged facilities may include architecturally screened roof-mounted antennas, buildingmounted antennas painted to match the existing structure, antennas integrated into architectural elements, towers made to look like trees and antenna structures designed to look like light poles.

City means City of San Marcos, California.

Co-Location means the use of a single mount on the ground by more than one carrier and/or Wireless Telecommunications Facility (vertical co-location) and/or several mounts on an existing building, structure

or site (horizontal co-location) by more than one carrier and/or personal wireless service facility.

Compact Cell means a Wireless Telecommunications Facility with a single Base Station that occupies no greater than eight cubic feet and utilizes three (3) or fewer antennas each occupying no greater than three (3) cubic feet.

Drive Test means a test of the actual over-the-air reception of radio frequency signals measuring and recording signal strength by geographic location performed within the area to be served by a particular proposed Wireless Telecommunications Facility and conducted specifically for the purpose of the application within three months prior to the submission of the application. A computer-based projection of radio frequency signal strength is not a Drive Test.

Effective Date means the effective date of this Chapter, (insert month, day, year).

Equipment Enclosure, Building, or Structure, or Cabinet means a cabinet or building that is used to house equipment used by telecommunication carriers at a wireless telecommunications facility site.

Facade-Mounted means an antenna that is architecturally integrated into the façade of a building or structure.

Faux Trees means a term that is used to refer to monopines, monopalms, monoeucalyptus and other camouflaged monopoles designed to resemble different species of trees.

FCC means the Federal Communications Commission or any successor to that agency.

FCC Shot Clock means the presumptively reasonable time frame, accounting for any tolling or extension, within which the City generally must act on a request for authorization in connection with a personal wireless service facility, as such time frame is defined by the FCC and as may be amended or superseded.

Guyed Tower means a telecommunications tower that is supported, in whole or in part, by guy wires and ground anchors.

In-Kind Call Testing means testing designed to measure the gap in coverage asserted by an applicant. If a claimed gap is for in-building coverage, then in-building call testing must be performed to establish the existence or absence of such a gap unless the applicant provides a sworn affidavit demonstrating good faith but unsuccessful attempts to secure access to buildings to conduct such testing and the circumstances that prevented the applicant from conducting such testing. Claimed gaps in service for "invehicle" or "open-air" service may be demonstrated by call testing performed in vehicles or in the open.

Lattice Tower means a guyed or self-supporting three or four sided, open, steel frame support structure used to support telecommunications equipment.

Least Intrusive means is defined as the location or design of a Wireless Telecommunication Facility addresses a significant gap in an applicant's personal communication service while doing the least disservice to the policy objectives of this chapter as stated in Section 17.12.050.A. Analysis of whether a proposal constitutes the least intrusive means must include consideration of means to close an asserted significant gap by co-locating a new personal Wireless Telecommunications Facility on the site, pole, tower, or other structure of an existing personal Wireless Telecommunications Facility.

sservice to the policy objectives of this chapter as stated in Section 17.12.050.A. Analysis of whether a proposal constitutes the least intrusive means must include consideration of means to close an asserted significant gap by co-locating a new personal Wireless Telecommunications Facility on the site, pole, tower, or other structure of an existing personal Wireless Telecommunications Facility.

Macro-Site means any wireless telecommunication facility not classified as a small wireless facility.

Monoeucalyptus means a monopole camouflaged to resemble a eucalyptus tree.

Monopalm means a monopole camouflaged to resemble a palm tree.

Monopine means a monopole camouflaged to resemble a pine tree.

Monopole means an uncamouflaged Wireless Telecommunications Facility tower consisting of a pole constructed without guy wires and ground anchors.

Monorock means a wireless telecommunications facility camouflaged to resemble one or a grouping of rocks.

Monoshrub means a wireless telecommunications facility camouflaged to resemble one or a grouping of shrubs or bushes.

OTARD means Over-the-Air Receiving Device.

OTARD Antenna means:

1.

An antenna that is designed to receive direct broadcast satellite service, including direct-to-home satellite services, that is one meter or less in diameter; or

2.

An antenna that is designed to receive video programming services via multipoint distribution services, including multi-channel, multi-point distribution services, instructional television fixed services, and local multi-point distribution services, and that is one meter or less in diameter or diagonal measurement; or

3.

An antenna that is designed to receive television broadcast signals.

OTARD Antenna Structure means any pole, tower, or other structure designed and intended to support an OTARD Antenna.

OTARD Facility means the combination of one or more OTARD Antennas affixed to an OTARD Antenna Structure.

Panel Antennas means antennas that are flush-mounted to an existing building façade, or other structure on at least one edge and do not extend more than twenty-four (24) inches. Panel antennas may also be mounted to a pole or a structure within the public right-of-way but must not project more than eight (8) inches from the pole to the front side of the panel.

Public Right-of-Way or Public Rights-of-Way means land or an interest in land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for or dedicated to or open to the use by the general public for pedestrian, road or highway purposes. The term does not include private or

public utility easements unless such easement is reserved for or dedicated to or open to the use by the general public for road or highway purposes.

PUC means the California Public Utilities Commission or its designated representative.

Radio Frequency means radiofrequency radiation, or the formation of radiofrequency radiation generated by the movement of electromagnetic energy through space, including radio and microwaves, which is used for providing telecommunications, broadcast and other services.

Roof-Mounted Antenna means any antenna with its support structure placed directly on the roof of any building or structure.

Shot Clock Days means calendar days counted toward the presumptively reasonable time under the applicable FCC Shot Clock. The term "shot clock days" does not include any calendar days on which the FCC Shot Clock is tolled (i.e., "paused"). As an illustration and not a limitation, if an applicant applies on April 1, receives a valid incomplete notice on April 5 and then resubmits on April 20, only four "shot clock days" have elapsed because the time between the incomplete notice and resubmittal are not counted.

Significant Gap as applied to an applicant's wireless telecommunications facility or the coverage of its wireless telecommunication facilities is intended to be defined in this chapter consistently with the use of that term in the Telecommunications Act of 1996 and case law construing that statute or term. Provided that neither the Act nor case law construing it requires otherwise, the following guidelines are to be used to identify such a significant gap:

1.

A significant gap may be demonstrated by In-Kind Call Testing or a Drive Test conducted by the applicant.

2.

The City must accept evidence of call testing by the applicant and any other interested person and must not give greater weight to such evidence based on the identity of the person who provides it but must consider:

a.

The number of calls conducted in the call test,

b.

Whether the calls were taken on multiple days, at various times, and under differing weather and vehicular traffic conditions, and

c.

Whether calls could be successfully initiated, received and maintained in the area within which a significant gap is claimed.

A significant gap may be measured by:

a.

The number of people affected by the asserted gap in service;

b.

The geographic area of the asserted gap in service;

c.

Whether a wireless communication facility is needed to merely improve weak signals or to fill a complete void in coverage.

Small Wireless Facilities means the same as defined in 47 C.F.R. § 1.6002(l), as may be amended or superseded, which provides that small wireless facilities are facilities that meet each of the following conditions:

1.

The facilities:

a.

Are mounted on structures 50 feet or less in height including their antennas as defined in [47 C.F.R.] § 1.1320(d); or

b.

Are mounted on structures no more than 10 percent taller than other adjacent structures; or

c.

Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

2.

Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in [47 C.F.R.] § 1.1320(d)), is no more than three cubic feet in volume;

3.

All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;

4.

The facilities do not require antenna structure registration under [47 C.F.R. Part 17];

The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

6.

The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in [47 C.F.R.] § 1.1307(b).

SMMC means San Marcos Municipal Code.

Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

Telecommunications Tower means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless communication facility antennas.

Unreasonable Interference (Within the Public Right-of-Way) means any use of the right-of-way that disrupts or interferes with its use by the City, the general public, or other persons authorized to use or be present upon the right-of-way, when there exists an alternative that would result in less disruption or interference. Unreasonable interference includes without limitation any use of the right-of-way that disrupts vehicular or pedestrian traffic; any interference with public utilities; and any other activity that will present a hazard to public health, safety, or welfare.

Whip Antenna means an antenna that transmits signals in 360 degrees. Whip antennas are typically cylindrical in shape and are less than three inches in diameter and measure up to six feet in length, including the mounting. Also called "omni-directional," "stick," or "pipe antenna."

Wireless Telecommunications Facility means any facility that transmits and/or receives electromagnetic waves, including, but not limited to, commercial wireless communications antennas and other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting said equipment, equipment cabinets, pedestals, meters, tunnels, vaults, splice box, surface location marker, equipment, equipment buildings, parking areas and other accessory development. The term also means any personal wireless services defined by the Telecommunications Act of 1996 and licensed by the Federal Communications Commission, including but not limited to, the types commonly known as cellular, personal communications services ("PCS"), specialized mobile radio ("SMR"), enhanced specialized mobile radio ("ESMR"), paging, ground based repeaters for satellite radio services, micro-cell antennas and similar systems. The term wireless telecommunications facility is consistent with "antenna or communications facility" referenced throughout this Chapter.

Wireless Telecommunications Tower means the same thing as Antenna Tower as defined herein. Wireless Tower means the same thing as Antenna Tower as defined herein.

(Ord. No. 2014-1398, 8-12-2014; Ord. No. 2023-1530, § B(Exh. A), 3-14-2023)

CHAPTER 20.470 - TWO-UNIT RESIDENTIAL DEVELOPMENTS IN SINGLE FAMILY ZONES

The purpose of this chapter is to establish objective standards regulating two-unit residential developments in the City, in order to implement California Government Code Section 65852.21, as it may be amended from time-to-time, and any successor statute ("Section 65852.21"). Notwithstanding anything contained in this chapter, the City reserves its right to make modifications to these standards, consistent with Section 65852.21.

(Ord. No. 2021-1510, § 3(Exh. 2), 12-14-2021; Ord. No. 2021-1511, § 3(Exh. 2), 1-11-2022)

Section 20.470.020 - Application.

A.

This chapter applies to proposed two-unit residential developments meeting the requirements set forth in Section 65852.21, subsection (a).

B.

For purposes of this chapter, a "two-unit residential development" is one which proposes no more than two new units, or which proposes to add one new unit to an existing unit.

C.

A two-unit residential development proposed for development in a single-family residential zone, shall be considered without discretionary review or hearing, and shall be approved ministerially if it meets the requirements of Section 65852.21, and the standards set forth in this chapter.

D.

Nothing in this chapter shall be applied in a way that would physically preclude: (i) the construction of up to two units; or (ii) either unit of a two-unit residential development from being at least 800 square feet in floor area.

(Ord. No. 2021-1510, § 3(Exh. 2), 12-14-2021; Ord. No. 2021-1511, § 3(Exh. 2), 1-11-2022)

Section 20.470.030 - Standards.

A.

Accessory Dwelling Units. No more than four units - including primary dwelling units, accessory dwelling units, and/or junior accessory dwelling units in any combination - may be created on a parcel. If a parcel was created subject to the urban lot split provision of Chapter 19.44 and includes an existing or proposed two-unit development, then no accessory dwelling units or junior accessory dwelling units are permitted on the parcel. If a parcel was not created subject to the urban lot split subdivision provisions of Chapter 19.44 and includes an existing or proposed two-unit development, then one accessory dwelling unit may be developed for each primary dwelling unit on the parcel. If a parcel was created subject to the urban lot split

subdivision provisions of Chapter 19.44 and includes one primary dwelling unit only, then one accessory dwelling unit or one junior accessory dwelling unit for each primary dwelling unit is permitted.

B.

Unit Square Footage and Separation.

1.

If a parcel includes an existing single-family home, one additional unit of not more than 800 square feet may be developed pursuant to this chapter. No more than 25 percent of the existing exterior structural walls shall be demolished to create the two-unit residential development, unless the existing single-family home has not been occupied by a tenant in the last three years.

2.

If a parcel does not include an existing single-family home, or if an existing single-family home is proposed to be demolished in connection with the creation of a two-unit residential development, two units of not more than 800 square feet each may be developed pursuant to this chapter.

3.

Each new Residential Developments in Single-Family in a two-unit residential development shall be separated by a distance of at least ten feet from any other structure on the parcel; however, units may be adjacent or connected if the structures meet building code safety standards and are sufficient to allow separate conveyance.

C.

Setbacks. Any construction of a two-unit residential development shall conform to all property development regulations of the zone in which the property is located including, but not limited to, height limits, stories, setback, lot coverage, landscape, and floor area ratio, as well as all fire, health, safety and building provisions of this title, subject to the following exceptions:

1.

No setback shall be required for an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure. Verification of size and location of the existing and proposed structure by City staff requires the applicant to provide pre- and post-construction surveys by a California licensed land surveyor to the City's satisfaction.

2.

For all other dwelling units proposed in connection with a two-unit residential development, a minimum setback of four (4) feet, or the applicable setback for the zone, whichever is less, is required from the rear and side property lines.

D.

Parking. Each two-unit residential development shall provide a minimum of one off-street parking space for each of the two units, except in either of the following instances:

1.

The parcel is located within one-half mile walking distance of either a high-quality transit corridor, as defined in California Public Resources Code ("PRC") Section 21155(b), or a major transit stop, as defined in PRC Section 21064.3; or

2.

There is a car share vehicle located within one block of the parcel.

E.

Percolation Test. For two-unit residential developments to be connected to an onsite wastewater treatment system, the City may require a percolation test completed within the last 5 years, or, if the percolation test has been recertified, within the last 10 years.

F.

Easements. All easements required for the provision of public services and facilities shall be dedicated or conveyed by an instrument in a form acceptable to the City Engineer.

G.

Rentals. The rental of any unit of a two-unit residential development shall be for a period longer than thirty days.

H.

Owner Occupied. For applications that do not involve an urban lot split subdivision pursuant to Chapter 19.44, one of the dwellings on the lot must be the bona fide principal residence of at least one legal owner of the lot containing the dwelling, as evidenced at the time of approval of the two-unit residential development by appropriate documents of title and residency. Prior to the issuance of a building permit, the applicant shall provide evidence that a covenant has been recorded stating that one of the dwelling units on the lot shall remain owner occupied.

I.

Height. Each new unit cannot exceed a maximum height of 16 feet. Two-story structures, or units proposed above a detached accessory structure are not permitted.

(Ord. No. 2021-1510, § 3(Exh. 2), 12-14-2021; Ord. No. 2021-1511, § 3(Exh. 2), 1-11-2022)

CHAPTER 20.500 - PERMITS AND APPLICATIONS PROCESS

Section 20.500.010 - Purpose and Intent

The provisions of this chapter establish the general requirements and procedures for all administrative and discretionary land use permits as required by this Zoning Ordinance. Specifically, the provisions of this chapter accomplish the following:

A.

Establish the procedures for the preparation, application and filing, processing, and approvals of all land use permits within the City.

B.

Ensure the administrative and discretionary review processes adequately evaluate and address issues of health, safety, and compatibility of land uses and adjacencies.

The provisions of this chapter shall be applicable to all land use permits, administrative and discretionary, required for the development, building, establishment, renewal, modification, or discontinuance of any land use or structure within the City. Permits, subject to this chapter, shall be issued in accordance with permit requirements of the applicable Zone. Nonconforming uses and structures shall be subject to permit procedures as established by Chapter 20.345 (Nonconforming Uses, and Structures).

A.

Exemptions. The following activities shall be exempt from the permit requirements of this Zoning Ordinance; however, the activities may be subject to building code compliance and permits required under other provisions of the Municipal Code:

1.

Interior modifications or alterations that do not result in an increase in gross square footage or modifications to the exterior setbacks of the building or structure.

2.

Ordinary repairs and maintenance that do not impact the operation or conditions of the established land use.

3.

Public utility or public agency activities for the installation, construction, modification, or maintenance of utilities as related to the service of existing or approved lots or development.

4.

Activities or installations specifically exempted from local zoning requirements pursuant to provisions of state or federal law.

(Ord. No. 2023-1529, § 3(Att. A), 2-28-2023)

All development proposals and applications may be subject to one (1) or more development application processing procedures.

1.

Exact processing and timing of applications shall be determined by the Director based on the applicable Zone and the project characteristics. Table 20.500-1 outlines the primary types of development applications, review procedures required, and responsibilities.

2.

All applications for a single project shall be processed concurrently. When a proposed project requires more than one (1) permit application with more than one (1) approving authority, all project permits shall be processed concurrently at the applicant's own risk as interrelated permits for a project and shall not be bifurcated. The highest designated approving authority for all requested permits shall take final action on all permits.

Table 20.500-1

Application and Review Types

Notes:

See Chapter 20.515 (Site Development Plan Review) for approval and referral regulations regarding Site Development Plans. 2. ;hg;See Chapter 20.525 (Variances) for approval and referral regulations regarding Variances. D = Deciding body whose decision is final unless appealed

R = Advisory body required to make recommendations A = Appeal authority

Section 20.500.040 - Administrative Permits and Approval

This Zoning Ordinance shall be administered and enforced by the City's Director, Planning Commission, and City Council.

All land uses applications shall be processed and approved administratively if the application is consistent with the applicable Zone requirements, and other applicable standards of this Title.

A.

Permit Consistency. All departments, officials, or public employees assigned the authority to issue certificates, permits, or licenses in compliance with this Zoning Ordinance shall conform to the provisions of this Title. Any certificate, permit, or license conflicting with the provisions of this Zoning Ordinance, shall be null and void.

B.

Building Permits Issued Prior to Effective Date. Any current building permit(s) issued prior to the effective date and hour of this Zoning Ordinance shall be permitted to be exercised even though contrary to the provisions of this Zoning Ordinance.

C.

Certificate of Occupancy Required. To ensure compliance with all provisions of the Zoning Ordinance, an administrative Certificate of Occupancy shall be obtained from the Building Department before:

1.

Any new building is initially occupied or used;

2.

Any existing building is altered or a change of type or class of use is made; and

3.

A change of use of any unimproved premises is made.

Permit applications may be initiated by the owner, owners, or their authorized agents of property in the City. The applicant shall submit an application in accordance with the format specified by the Director. Fees shall be paid at the time of application in accordance with the fees developed. A land use that complies with the requirements of this chapter shall also comply with the permit requirements of other Code provisions and any applicable permit requirements of other agencies before construction or use of the property commences. These may include building, grading, or other construction permits; a business license; subdivision approval; or any other applicable county, regional, State or federal regulations.

A.

Signatures. Application shall be signed by the property owner and applicant or agent. When other signatures are required or offered in support of, or in opposition to, an application, they may be received as

evidence of notice having been served upon them of the pending application, and/or as evidence of their opinion on the pending issue, but they shall, in no case, infringe upon the free exercise of the powers vested in the Planning Commission or the City Council.

B.

Application Review. Applications shall be processed if the Director finds the application to be complete at time of filing. The applicant shall be notified in writing within thirty (30) days if the application is complete. If the application is found to be incomplete, the Director will notify the applicant in writing within thirty (30) days, indicating what additional information is required to complete the application. The application will not be processed until that information is received by the Director.

C.

Fee Schedule. All fees related to permits, review, or processing related to any application shall be paid at the time of application submittal. All fee schedules may be set or adjusted by resolution of the City Council.

1.

Where the applicant withdraws an application for consideration, a written request by the applicant may be filed with the Planning Division or with the City Council for a refund of application fees. Application for refund of fees shall be made in the manner and on the form prescribed for refunds authorized by Section 26906 of the Government Code.

Section 20.500.060 - Public Review and Hearings Required

Public review and hearings shall be held for all applications subject to the regulations of this chapter. All public hearings and public noticing of such hearings shall be consistent with State law and the procedures of Chapter 20.505 (Noticing and Public Hearings).

Section 20.500.070 - Environmental Review

All permit applications shall be reviewed by the Director to determine if the application constitutes a "project" under CEQA. Administrative actions and DPs are issued following nondiscretionary review by the Director and do not generally qualify as projects under CEQA. Any permit that qualifies as a project under CEQA shall be subject to environmental review in accord with CEQA and Title 18 (San Marcos Environmental Guidelines) of this Code. The applicant shall submit all information and materials deemed necessary by the Director to complete the environmental review in accordance with CEQA and Title 18 of this Code.

Section 20.500.080 - Application and Permit Limitations

All applications and permits filed, granted, or denied through the City shall be subject to the following limitations:

A.

Commencement. All building, development, or land use activities associated with a granted permit shall commence within:

One (1) calendar year of permit issuance,

2.

Within the time specified by the permit issued, and

3.

Within the extension time specified by the permit issued.

Failure to commence activities or uses within this time period shall result in expiration of the permit, at which time all associated approvals will be null and void.

B.

Time Limit. All permits shall automatically expire, becoming null and void, one (1) calendar year from the date of permitted use discontinuance.

C.

Reapplication. Reapplication following denial of a permit shall not occur earlier than three (3) months after such denial unless specific authority to do so has been granted by the Planning Commission or the City Council.

D.

Modifications or Waiver. An application may be submitted to the Director for a modification or waiver of one (1) or more condition(s) of any granted permit. The processing, approval/denial process, and fee for this modification/waiver applications shall be the same as that of the original permit.

E.

Minor Deviations from Plot Plan. To provide flexibility in the development and permitting process, minor deviations to approved plot plans in conjunction with an approved permit may be authorized by the Director. Minor deviations shall be limited to actions that will not:

1.

Constitute a substantial change in the permit,

2.

Adversely affect adjacent property or adjacent property owners, and

3.

Violate any requirement of this Zoning Ordinance.

Plot plan deviations resulting in one (1) or more of the following shall not be authorized:

An increase or decrease of more than ten percent (10%) of the:

a.

Gross area of any yard, open space working area, or parking area;

b.

Size of any building or structure or of the total land area covered by any building or structure;

c.

Building/structure height or depth; or

d.

Area of an excavation, slope, or working area.

2.

Increase of land/site coverage by more than ten percent (10%) by any increase in building size or number of structures.

F.

Nuisance. Neither the provisions of this chapter nor the granting of any permit provided for in this chapter authorizes or legalizes the maintenance of any public or private nuisance.

G.

Review Period. The time limits for required review or hearing action on an application or permit may be extended by the City Council.

H.

Bond Insurance. Any permit granted based on a condition, limitation, or limited time line may be subject to a performance bond. The Director, Planning Commission, or City Council may require the permit applicant to secure a monetary or surety bond to ensure compliance with the conditions and limitations of the permit, including any limitation of time. All bonds shall be:

1.

Submitted in a form satisfactory to the City,

2.

Payable to the City, and

Conditioned upon permit compliance.

Any breach of condition or limitation shall result in forfeiture of the bond to the City and paid into the general fund of the City.

I.

Automatic Revocation. A permit shall cease to be valid and all rights or privileges from such permit revoked if a court of competent jurisdiction declares one (1) or more of the permit conditions required to be void or ineffective, or enjoins or prohibits the enforcement or operation of any condition.

CHAPTER 20.505 - NOTICING AND PUBLIC HEARINGS

Section 20.505.010 - Purpose and Applicability

The provisions of this chapter establish the procedures for all noticing and public hearing conducted by the City applicable to all land use, zoning, and development actions.

All applications, permits, or appeals requiring public hearing shall require public notification of the hearing in compliance with State law (Government Code Sections 65090, 65091, 65094, and 66451.3, and Public Resources Code 21000 et seq.), and as required by this chapter.

Section 20.505.020 - Responsibilities

A.

Administrative Decisions. The Director shall approve, conditionally approve, or disapprove administrative permits. The Director may also decline to take action and forward the application for action to the Planning Commission public hearing.

B.

Setting Hearings.

1.

The Director shall set Planning Commission public hearings.

2.

The City Council Clerk shall set City Council public hearings.

C.

Planning Commission.

1

The Planning Commission may establish its own rules for the conduct of public hearings.

The person acting as chair of the Planning Commission is hereby empowered to administer oaths to any person testifying at a hearing before the Planning Commission.

3.

The Planning Commission, or members of its staff, shall be responsible for investigation of facts bearing upon an application for hearing, including an analysis of precedent cases, as appropriate to provide pertinent information regarding the application to properly determine applications and actions are consistent with the purpose of this chapter and with previous amendments or variances.

D.

Administrative Citations. Noticing and hearings for administrative citations shall be conducted in accordance with the provisions of Chapter 1.14 of this Code.

Section 20.505.030 - Noticing for Public Hearings

Notice of the time and place of all discretionary applications and appeals requiring a public hearing shall be given in the manner provided by Section 65905 of the Government Code or where exceeded by the following requirements:

A.

Notice Address. All notices and other communications required or governed by this chapter for an applicant shall be addressed to the applicant at the address at which the applicant conducts his/her business. All notices and other communications to the City shall use the applicant's published address for receipt of public communications.

B.

Content of Notice. Public notices of hearings or administrative decisions on all discretionary applications requiring public hearing shall consist of the words "Notice of Public Hearing" or "Notice of Intended Decision." Additionally, notice of public hearing shall include the following:

1.

Hearing information including date, time, place and purpose of the hearing, name of the hearing body, and Planning Division contact for additional information.

2.

Project information including the name of applicant, City case number (if relevant and available), general explanation of matter to be considered, purpose of application, and description of property and location map (except if it is City-wide) that is the subject of the hearing.

3.

Statement of environmental documentation, including if any CEQA-related document has been prepared for the project, if the project has been determined to be exempt in compliance with CEQA, and whether the hearing will include review/approval of such documentation.

4.

Where application is made for administrative decisions or public hearings, the Director or the Planning Commission shall have the discretion to include in the notice of hearing a statement that alternative classifications and/or additional properties and/or uses will be considered.

C.

Required Advance Notice.

1.

Mailing. Notice shall be mailed postage prepaid not less than ten (10) days prior to the scheduled hearing date or administrative decision of the Director.

2.

Notice Radius. Mailed notice shall be sent to the owners of property within a five hundred (500)-foot radius of the exterior boundaries of the project property that is the subject of the hearing, except the following exemptions:

a.

The Director may determine broader public notice requirements are needed based upon the nature of a proposed project. The names and address of all property owners required to receive notice shall be submitted to the City by the applicant as delineated in the City's public notice package.

b.

The public notice radius for DPs for large-family child care homes shall be one hundred (100) feet from the exterior boundaries of the property for which said application is sought.

3.

Circulated Notification. If the number of property owners requiring notification subject to Section 20.505.030.B.2 is more than 1,000, the Director may provide a circulated notice allowed by Government Code Section 65091.

4.

Decision Notification. Notification of the hearing or intended administrative decision to be given by publication shall be made and done in a newspaper with general circulation in accordance with Section 65905 of the Government Code.

5.

Posted Notices. Notice of the Permit Application shall be posted on the project site in a conspicuous location for public visibility within one (1) week of application submittal.

a.

The "Notice of Permit Application" posting shall have a minimum size of sixteen (16) square feet, except a posted notice for a large-family child care home application, which shall be four (4) square feet.

D.

Noticing Package. The applicant shall provide a public notice package that shall include the following:

1.

San Diego County Assessor's Map(s): showing the entire property (project site) by crosshatched markings with a radius line encircling the property at a distance of five hundred (500) feet from the perimeter property line. Each parcel lying wholly or in part within the five hundred (500)-foot line shall have the actual parcel number delineated. Assessor's maps must be drawn to scale and be submitted on eight and one-half (81/2) by eleven (11)-inch sheets.

2.

Typed list of all affected property owners: (project site and parcels delineated within the five hundred (500)foot radius) by Assessor's Parcel Number with name and address as listed on the latest equalized Assessor's rolls. The list shall also include occupants of each parcel.

a.

A minimum of ten (10) property owners surrounding the project site must be listed.

b.

If the five hundred (500)-foot radius is within the boundary of an owner-occupied mobilehome park/project, or condominium project, the entire mobilehome park or condominium complex shall be included in the public notice package.

c.

For properties located within the Ridgeline Protection and Management Overlay Zone, the property shall be identified with a crosshatch identifying a 1,000-foot radius. The radius shall be expanded as necessary to include a minimum of one hundred (100) property owners.

3.

Three (3) separate sets of gummed mailing labels on eight and one-half (8-1/2) by eleven (11)-inch sheets containing the information in Section 20.505.030.C.2 for each property owner and occupant on the list. If a property owner owns several contiguous parcels, the applicant need only submit one (1) label with each set. If the application requires Council approval, two (2) additional sets of labels are required. In addition, if a project requires a public workshop the applicant will be required to submit one (1) additional set of labels. If the workshop or hearings are held more than one (1) year after the initial list of property owners was provided by the applicant, the applicant shall be required to provide new list and set(s) of labels using the latest County Assessor data available.

If the project is appealed, the applicant will be required to submit an additional set of gummed labels on eight and one-half (8-1/2) by eleven (11)-inch sheets containing the names and addresses of all property owners of the subject site and within five hundred (500) feet of a project. The names on these labels must match the names on the typed list.

5.

Public Notice Affidavit: This form, signed by the applicant, certifies that the names and addresses submitted with the public notice package are from the latest adopted San Diego County Tax Assessors Rolls.

6.

Completed Tenant Public Notice Affidavit: Some applications may require notification of nearby apartments/condominiums/mobilehome parks, industrial park tenants, or commercial center tenants.

Section 20.505.040 - Continued Hearings

If, for any reason, testimony on any matter set for public hearing cannot be completed on the day set for such hearing, the person presiding at such public hearing may, before the adjournment or recess thereof, publicly announce the time and place to, and at which, said hearing will be continued and no further notice shall be required.

CHAPTER 20.510 - DIRECTOR'S PERMITS

Section 20.510.010 - Purpose and Intent

The purpose of this chapter is to establish the application, review, and decision procedures for an administrative DP. The DP enables the Director to administratively review the location, site development, and/or conduct of certain land uses. DPs are not the automatic right of any applicant. A DP goes with the land and is nontransferrable to another location.

Section 20.510.020 - Applicability

DPs are required for some land uses, subject to the permit requirements of the applicable Zone. A DP may only be issued in accordance with Zone requirements and with this Zoning Ordinance.

Section 20.510.030 - Applications

A.

Responsibility. The Director shall have the responsibility to approve, conditionally approve, or disapprove an administrative DP. The Director may also decline to take action and forward the application for action to the Planning Commission public hearing.

B.

Initiation of Application. DP applications may be initiated by the owner, owners, or their authorized agents of property in the City, but only where the use is authorized as a DP in the Zone in which the property lies.

The applicant shall submit an application in accordance with the format specified by the Director. Fees shall be paid at the time of application in accordance with the fee schedule. An application for a DP shall be accompanied by the following:

1.

Submittal of all information and materials deemed necessary to render the requested land use decision before the application is deemed complete.

2.

Complete plans and description of the property involved and the proposed use.

3.

Evidence, satisfactory to the Director, of the ability and intention of the applicant to proceed with actual construction work in accordance with said plans within six (6) months after issuance of the DP.

C.

Project Review and Noticing. Applications for a DP shall be processed if the Director finds the application to be complete at time of filing. The applicant shall be notified in writing within thirty (30) days if the application is complete.

1.

If the application is found to be incomplete, the Director shall notify the applicant in writing within thirty (30) days, indicating what additional information is required to complete the application. The application will not be processed until that information is received by the Director.

2.

The review process for DPs is generally illustrated in Figure 20.510-1. Each application shall be analyzed by the Director to ensure the application is consistent with the purpose and intent of this Section.

3.

The Director shall issue a Date of Intended Decision. The Notice of Intended Decision, including the scheduled decision date, shall be publically noticed, consistent with Section 20.505.030 (Noticing and Public Hearings) and state law.

4.

Public notice shall be given in compliance with Chapter 20.505 (Noticing and Public Hearings).

Section 20.510.040 - Hearing and Decision

A.

Administrative Decision Requires No Hearing. DPs are reviewed and approved administratively by the Director and require no public hearing unless an appeal is filed. The Director may approve, conditionally

approve, or deny a DP application after making the following findings.

B.

Required Finding. The approval of a DP shall be accompanied by all the following findings:

1.

Approval of the DP would not result in detrimental impacts to adjacent properties or the character and function of the neighborhood.

2.

The design, development, and conditions associated with the DP are consistent with the goals, policies, and intent of the General Plan, the purpose and intent of the applicable Zone, and the character of any applicable Specific Plan.

3.

The land use allowed in conjunction with the DP is compatible with the existing and future land uses of the applicable Zone, and the general area in which the proposed use is to be located.

C.

Conditions and Limitations. DPs may be granted upon such conditions and limitations and for such periods of time as the Director shall deem to be reasonable and necessary or advisable under the circumstances so that the objectives of this Zoning Ordinance are achieved.

Section 20.510.050 - Appeals and Revocations

All appeals or use revocations related to a DP application or granted DP shall be consistent with the standards and process of Chapter 20.545 (Appeals and Revocations).

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