§ 19-15. Wireless telecommunications services provided by telephone corporations in the public rights-of-way

(a) The city council finds and determines as follows:

(1) The Federal Telecommunications Act of 1996 ("FTCA") preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service.

(2) The California legislature has delegated to the Public Utilities Commission ("CPUC") its primary authority to regulate local telephone competition, and to issue certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. Section 7901 of the California Public Utilities Code applies equally to wireless carriers and wireless equipment. Wireless carriers have been determined by the courts to be included in the CPUC definition of "telephone corporation" in Section 7901, and the definition of "telephone line" in Section 7901 has been determined by the courts to be broad enough to include wireless equipment.

(3) Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state."

(4) Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line."

(5) Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets.

(6) Section 7901 of the California Public Utilities Code ("Section 7901") authorizes telephone and wireless corporations to construct telephone or wireless telecommunication lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

(7) Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. Specifically, it has been determined by the courts that a municipality has authority to regulate the placement and appearance of telecommunications equipment installed on its public rights-of-way, and that a municipality need not grant wireless providers blanket permission to install their equipment throughout a municipality, but may require wireless providers to go through a site-specific permitting process provided it is not so burdensome that it runs afoul of Section 7901.

(8) Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes.

(9) Section 1455 of Title 47 of the United States Code mandate approval by local agencies of certain eligible facilities requests for modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such wireless tower or base station.

(b) In recognition of and in compliance with the statutory authorizations and requirements set forth above in paragraph (a), the following regulatory provisions are applicable to users of telecommunications equipment in the public right-of-way ("PROW"), including but not limited to wireless telecommunications providers, which desire to provide telecommunications service by means of facilities that are proposed to be constructed within the city's public rights-of-way:

(1) Users of telecommunications equipment in the PROW must apply for and obtain, the following, as deemed applicable by the city engineer:

a. A "wireless telecommunications use permit" is required for certain specified wireless telecommunications structures pursuant to the criteria set forth in subsection (c) below;

b. A wireless telecommunications "master plan" is required for the approval of certain specified design prototypes of wireless telecommunications structures;

c. An excavation permit, an encroachment permit, and/or a building permit may be required as applicable.

(2) In addition to the information required by this Code in connection with an application for any required permit, a telephone corporation must submit to the city the following supplemental information:

a. A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the city's public rights-of-way; provided, however, that these requirements may be waived by the city where the applicant has submitted these documents in connection with a prior application, and there have been no amendments or supplements to these documents.

b. If the applicant has obtained from the CPUC a certificate of public convenience to operate as a "competitive local carrier," the following additional requirements are applicable:

1. As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has timely filed with the city a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the city during the calendar quarter in which the application is filed, which information is sufficient to enable the city to coordinate multiple projects, as may be necessary.

2. If the applicant's proposed construction project will extend beyond the utility rights-of- way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full-scale environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the CPUC.

3. The applicant must inform the city whether its proposed construction project will be subject to any of the mitigation measures specified in the Negative Declaration ["Competitive Local Carriers (CLCs) Projects for Local Exchange Communication Service throughout California"] or to the Mitigation Monitoring Plan adopted in connection with Decision No. 95-12-057 of the CPUC. The city's issuance of a ministerial permit will be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as "competitive local carriers."

(c) The purpose of this section is to establish the parameters for discretionary review of a "wireless telecommunications use permit" and "master plan" to identify processing procedures, regulations, review criteria, and findings for these requests.

(1) Any wireless telecommunications facility that is to be installed within the public right-of-way shall require a public right-of-way encroachment permit.

(2) Except as provided in subsection (d) any wireless telecommunication facility that is located in the city's public right-of-way and meets any of the following criteria shall require a wireless telecommunications use permit or master plan:

a. If the antenna is greater than twenty-six (26) inches in length;

b. If the volume of the radio box exceeds two (2) cubic feet;

c. If the facility requires an above ground cabinet/equipment; or

d. If the facility is located within a five hundred-foot radius of a residential zone.

(3) The wireless telecommunications use permit or master plan application shall be subject to the same planning application review process as for a minor conditional use permit as set forth in Title 13, Chapter III, Planning Applications, of the Municipal Code, except as otherwise indicated in this section. This application process includes, but is not limited to, a completed application, applicable processing fees, public notice, and appeals process. The application processing fee is a user fee that shall be adopted by city council by resolution.

(4) The zoning administrator is authorized to act on and grant approvals of a discretionary application for a wireless telecommunications use permit or master plan. The Municipal Code provisions related to the zoning administrator's authority are found in Title 13 of the Municipal Code. The zoning administrator shall serve as the final decision authority or may forward any action to the planning commission for review. An appeal or review of the zoning administrator's decision shall be according to the procedures set forth in Title 2, Chapter IX Appeal, Rehearing and Review Procedure, of the Municipal Code.

(5) The city engineer is authorized to:

a. Act on and grant approvals of ministerial permits related to wireless telecommunications facilities in the public right-of-way that do not meet the thresholds identified in subsection (c)(2)a., b., c., and d.

b. Forward any request related to a wireless telecommunications facility in the public right-of-way to the zoning administrator for review. These may include, but not be limited to, ministerial permits.

The application process for these referrals to the zoning administrator shall be subject to the same procedures, purpose, conditions, review criteria, and findings as described for a wireless telecommunications use permit or master plan.

(6) Review criteria for the wireless telecommunications use permit or master plan application shall consist of the following:

a. The final review authority shall limit their review to the factors allowed under federal and state law, including the following:

1. Compatible and harmonious relationship between the proposed facility and site development or use(s), that exists or has been approved for the general neighborhood.

2. Safety and compatibility of the design of the proposed facilities, relevant structures, landscaping, luminaries and other site features which may include functional aspects of the site development.

3. Compliance with any performance standards for wireless telecommunications facilities as prescribed elsewhere in the Municipal Code, or by city policy;

4. Consistency with the general plan.

b. The final authority may not consider any impact on the health, safety and welfare, or any information, evidence, or consideration which exceeds the authority allowed to it under federal or state law.

(7) Condition(s) of approval for the application shall assure compliance with the applicable provisions of state and federal laws, assure compatibility with surrounding properties and uses and protect the public health, safety and general welfare. These conditions shall be within the authority allowed to the city pursuant to federal and state law.

Prior to processing an application, the applicant shall furnish documentation from the CPUC that the listed items below have been met.

a. When the applicant is leasing access to an existing facility that CPUC approval has been processed in accordance with Public Utilities Code Section 851.

b. When the applicant plans deployment of their facility over existing utility rights-of-way, that they have completed the necessary CPUC review under the California Environmental Quality Act (CEQA) for any such proposed build-out.

(8) When granting an application, the final review authority shall find that the evidence presented in the administrative record substantially meets any required conditions listed below.

a. The location and placement of wireless telecommunications facilities in the public right-of-way are reasonably considered along with the California Public Utilities Code provisions for right of access to the public right-of-way.

b. The proposed wireless telecommunications facility is substantially compatible with developments and uses in the same general area and would not be substantially detrimental to developments or uses within the general area.

c. The proposed wireless telecommunications facility will not be materially detrimental to the health, safety and general welfare of the public in so far as the local agency is authorized to determine under federal and state law.

d. Antennas and any poles or other structures erected to support antennas shall be visually compatible with surrounding building and vegetation. The final review authority may require that the antenna be painted in a neutral color to complement the existing natural and built environment.

(9) The wireless telecommunication use permit or master plan shall be valid for a ten-year period from the date of approval, unless otherwise indicated in a condition imposed at the time of granting the application or unless otherwise exempted under federal or state law. Prior to the expiration of the permit, the applicant may apply for a ten-year extension of time. If notice was required for the original application, and a public hearing on the extension is allowed under federal and state law, notice of the public hearing for a time extension shall be given according to the procedures set forth in this section.

(10) The city reserves all rights that it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or proposed to be provided, by a telephone corporation. These reserved rights may relate, without limitation, to the imposition of reasonable conditions in addition to or different from those set forth in this section, the exaction of a fee or other form of consideration or compensation for use of public rights-of-way, execution of a leasing agreement, and related matters; provided, however, that such regulatory rights and authority must be consistent with federal and state law that is applicable to cable or telecommunications services provided by telephone corporations.

(11) The maximum height of the telecommunication facilities allowed within the public right-of-way shall not exceed thirty five (35) feet (above the nearest top of curb elevation grade level), unless such extension is required to comply with applicable federal or state health and safety laws. (i.e. CPUC General Order 95).

(d) Pursuant to Title 47 United States Code Section 1455 and notwithstanding any provision of this section to the contrary, a request for a modification of an existing wireless tower or base station for the collocation of new transmission equipment or removal or replacement of existing transmission equipment shall be approved ministerially without the processing of a discretionary use permit provided that such modification does not substantially change the physical dimensions of such tower or base station from the dimensions approved as part of the original discretionary permit for the tower or base station. However, any modification to a wireless tower or base station which substantially changes the physical dimensions of either the tower or base station, and any other modification to a wireless telecommunications facility that does not qualify as a wireless tower or base station (as defined in this section) shall be subject to the permits and authorizations required by this article.

(e) For purposes of this section, the following definitions shall apply:

(1) "Wireless telecommunications facility" shall have the same meaning as that set forth in California Government Code 65850.6(d)(2) as may be amended from time to time.

(2) "Wireless tower" means any structure built for the sole purpose or primary purpose of supporting antennas and their associated facilities used to provide services licensed by the FCC. A Distributed Antenna System installed pursuant to a Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission, a water tower, utility tower, street light, or other structure built primarily for a purpose other than supporting services licensed by the FCC, including any structure installed pursuant to California Public Utility Code Section 7901 is not a wireless tower for purposes of this definition.

(3) "Base station" means the power supplies, electronic equipment housed in cabinets and antennas at an existing wireless tower site that together comprise a wireless tower. Distributed Antenna System installed pursuant to a Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission is not a base station for purposes of this definition.

(4) "Substantially change the physical dimensions" means any of the following, and refers to a single change, or a series of changes over time (whether made by the same or different entities) viewed against the initial approval for the tower or base station that individually or cumulatively have any of the effects described below:

a. Changing any physical dimension of the wireless tower or base station in a manner that creates a safety hazard, whether from wind loading, stress on the wireless tower, or in any other manner.

b. Changing the physical dimension of a wireless tower where the changes would be inconsistent with the design of the wireless tower, or make the wireless towers more visible.

c. Changing the physical dimensions would require work that would intrude upon the public right-of-way, or any environmentally sensitive area.

d. Increasing by more than ten (10) percent any of the following: the height or width in any direction of the wireless tower, or the area required for structures required to support the wireless tower, such as guy wires as approved and constructed through the discretionary permit process; provided that in no event shall the height exceed the maximum height permitted under the city's regulations.

e. Increasing by more than ten (10) any of: the height or area encompassed within any structure or object enclosing the wireless tower, such as a fence or line of bushes.

f. Increasing any of an existing antenna array's depth, circumference or horizontal radius from the wireless tower in any direction by more than ten (10) percent.

g. Adding more than two (2) antenna arrays to an existing wireless tower, or adding antenna arrays that, if the array were an existing array, would be of such depth, circumference or radius as to fall outside of subsection (f) unless such arrays were approved pursuant to Government Code Section 65850.6.

h. The mounting of the new or replacement transmission equipment would involve installing new equipment cabinet(s) not permitted under the initial approval and that will not fit within the existing enclosure for the wireless tower or base station or would require installation of a new cabinet or enclosure, excluding new equipment and cabinets that will be installed underground.

(5) A wireless telecommunications master plan contains design prototypes for wireless telecommunication antenna facilities, locational criteria for each prototype, number of facilities, and proposed screening and landscaping.

(6) A wireless telecommunications use permit is a discretionary request for the approval of a wireless telecommunications facility in the public right-of-way.

(f) Each application submitted under subsection (d) of this section shall be accompanied by:

(1) A detailed description of the proposed modification to the existing facilities;

(2) A photograph or description of the wireless tower as originally constructed, if available, and, a photograph of the existing wireless tower and/or base station, and a graphic depiction of the wireless tower and/or base station after modification, showing all relevant dimensions;

(3) A description of all construction that will be performed in connection with the proposed modification; and

(4) A signed statement by a professional engineer licensed and qualified in California, attesting that the modifications to be performed will not trigger discretionary review under this section.

Any permit issued under subsection (d) of this section will be conditioned, and may be revoked and the wireless telecommunication facility required to be removed if (a) any statement made with respect to the WTF is not accurate; or (b) the city engineer finds that the modifications necessitated discretionary review.

(Ord. No. 98-18, § 1, 6-15-98; Ord. No. 12-6, § 1, 9-4-12 )