Chapter 17.46
TELECOMMUNICATIONS AND WIRELESS FACILITIES
Sections:
17.46.010 Purpose and Findings.
17.46.040 General Development Standards.
17.46.050 Wireless Application Types and Submittal Requirements.
17.46.060 Application Review Procedures.
17.46.070 Public Notices, Public Hearings, Decision Notices and Appeals.
17.46.090 Standard Conditions of Approval.
17.46.010 Purpose and Findings.
A. Purpose. The purpose of this chapter is to establish comprehensive requirements and development standards for the siting, design, construction, maintenance and modification of wireless facilities in Carmel-by-the-Sea, including on public and private property and in public rights-of-way, in order to manage their deployment and minimize adverse aesthetic impacts to Carmel-by-the-Sea’s unique village character, consistent with and to the full extent of the City’s authority under Federal and California law.
B. Findings. The City Council hereby finds that:
1. Limitations on the placement of wireless facilities within the City limits are necessary to:
a. Protect Carmel-by-the-Sea’s distinct “village in a forest, by the sea” character with its centralized commercial core surrounded by residential land uses.
b. Protect Carmel-by-the Sea’s charm as a popular visitor destination, known as much for its spectacular coast as for its unique community character.
c. Recognize and respect that Carmel-by-the-Sea is among a limited number of California coastal communities where nearly the entire shoreline from the first public road to the sea is open to the public and easily accessible and that, over the years, Carmel has maintained a balance between preserving the beauty of the shoreline environment and adding the physical improvements that make the Carmel shoreline accessible and enjoyable to the public, keeping the entire beach and bluff as natural appearing as possible consistent with public access, habitat protection, safety and provision of limited recreational support facilities.
d. Recognize and respect that Carmel-by-the-Sea’s streets are narrow in width, 26 to 34 feet, with few gutters or sidewalks and that this lack of formal development of streets throughout Carmel (with the exception of some of the downtown thoroughfares) has been a conscious effort on the part of residents to maintain a “village in a forest” atmosphere, and gives rise to many unique situations relating to traffic, circulation, parking and pedestrian safety.
2. Personal wireless services can serve as an important and effective part of Carmel-by-the-Sea’s emergency response and communications.
3. The regulations contained herein are designed to promote public health, safety and community welfare, preserve the natural resources and scenic quality of Carmel-by-the-Sea and protect the character of the City’s residential neighborhoods, recognizing that the preservation of the residential character in Carmel is central to all land uses, consistent with the findings in subsections (B)(1) and (2) of this section, while regulating managed development of wireless infrastructure throughout the City.
4. The provisions of this chapter are intended to:
a. Comply with all applicable goals, objectives and policies of the General Plan, the City’s local coastal program and the California Coastal Act.
b. Minimize adverse aesthetic impacts associated with wireless facilities in all districts.
c. Preserve Carmel’s primarily residential character by keeping business and commerce subordinate to its residential character.
d. Comply with all Federal law, Federal Communications Commission rules, regulations and standards, California law, and California Public Utilities Commission regulations and standards.
e. Ensure the safe installation and maintenance of wireless facilities to protect against fire hazards made more prevalent by Carmel’s unique urbanized forest, topography and accessibility. (Ord. 2023-06 § 2, 2023).
17.46.020 Definitions.
The definitions in this section apply to this chapter. Undefined terms shall have the meaning assigned to them in Chapter 17.70 CMC. Per CMC 17.02.090(C), to the extent that this chapter quotes or paraphrases any State or Federal statute for convenience and any conflict is discovered or is created through amendment, the State or Federal statute shall control and shall be cause for an amendment to this chapter.
A. Generally Applicable Definitions.
1. “Accessory equipment” means equipment other than antennas used in connection with a wireless facility. The term includes transmission equipment.
2. “Amateur station” means the same as defined by the FCC in 47 CFR 97.3, which means a station in an amateur radio service consisting of the apparatus necessary for carrying on radio communications. This term includes amateur radio antennas and related facilities used for amateur radio services.
3. “Antenna” means the same as defined by the FCC in 47 CFR 1.6002(b), which means an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to Commission authorization, for the provision of personal wireless service and any commingled information services.
4. “Base station” means the same as defined by the FCC in 47 CFR 1.6100(b)(1), which means: A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower or any equipment associated with a tower.
a. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
b. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).
c. The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this chapter, supports or houses equipment described in 47 CFR 1.6100(b)(1)(i) through (ii) that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
d. The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in 47 CFR 1.6100(b)(1)(i) through (ii).
5. “Collocation” means the same as defined by the FCC in 47 CFR 1.6002(g), which means (a) mounting or installing an antenna facility on a preexisting structure; and/or (b) modifying a structure for the purpose of mounting or installing an antenna facility on that structure. For eligible facilities requests, the definition of collocation in subsection (B)(1) of this section applies instead of this definition.
6. “CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or its duly appointed successor agency.
7. “Director” means the City of Carmel-by-the-Sea Community Planning and Building Director or the Director’s designee.
8. “EFR” or “eligible facilities request” means the same as defined by the FCC in 47 CFR 1.6100(b)(3), which means any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment.
9. “FCC” or “Commission” means the Federal Communications Commission, as constituted by the Communications Act of 1934, Pub. L: 73-416, 48 Stat. 1064, codified as 47 U.S.C. §§ 151 et seq., or its duly appointed successor agency.
10. “Fire Safety Authority” means the Chief Building Official of the City of Carmel-by-the-Sea or the Fire Safety Authority’s designee.
11. “Historic resource” means any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places, the California Register of Historical Resources, the “Carmel Inventory of Historic Resources” or the “Carmel Inventory” as defined in CMC 17.32.230, the “Carmel Register of Historic Resources” or the “Carmel Register” as defined in CMC 17.32.230, or any “historic resource” or “historical resource” as defined in CMC 17.32.230. The term includes artifacts, records and remains related to or located within such properties. The term also includes properties with traditional religious and/or cultural importance to any Native American tribe.
12. “OTARD” means any “over-the-air reception device” subject to the FCC rules in 47 CFR 1.4000 et seq., which generally includes satellite television dishes and antennas, and certain fixed wireless antennas not greater than one meter in diameter.
13. “Personal wireless service facility” means the same as defined by the FCC in 47 CFR 1.6002(i), which means an antenna facility or a structure that is used for the provision of personal wireless service, whether such service is provided on a stand-alone basis or commingled with other wireless communications services.
14. “Personal wireless services” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), which means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.
15. “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 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.
16. “Reviewing authority” means the City official or appointed/elected body responsible for application review and vested with authority to approve, approve with modifications and/or conditions, or deny such applications.
17. “RF” means radiofrequency.
18. “Small wireless facility” means the same as defined by the FCC in 47 CFR 1.6002(l), which means a personal wireless service facility that meets each of the following conditions:
a. The facilities (i) are mounted on structures 50 feet or less in height including their antennas; or (ii) are mounted on structures no more than 10 percent taller than other adjacent structures; or (iii) 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;
b. Each antenna associated with the deployment is no more than three cubic feet in volume, excluding associated antenna equipment;
c. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment, cumulatively total no more than 28 cubic feet in volume;
d. The facility does not require antenna structure registration under 47 CFR Part 17 (Construction, Marking and Lighting of Antenna Structures);
e. The facility is not located on tribal land; and
f. The facility will not result in human exposure to radiofrequency radiation in excess of the applicable FCC safety standards set forth within Table 1 of 47 CFR 1.1310(E)(1).
19. “FCC shot clock” means the time defined by the FCC in 47 CFR 1.6003 or 1.6100(c) (as applicable) in which a State or local government must act on an application or request for authorization to place, construct or modify personal wireless services facilities.
20. “Stealth” means concealment elements, measures and techniques that mimic or blend with the underlying structure, surrounding environment and adjacent uses to screen all transmission equipment from public view and integrate the wireless facility into the built or natural environment such that, given the particular context, a reasonable person would not recognize the structure as a wireless facility. Stealth concealment techniques include, without limitation: (a) transmission equipment placed completely within existing or replacement architectural features such that the installation causes no visible change in the underlying structure; (b) new architectural features that mimic or blend with the underlying or surrounding structures in style, proportion and construction quality such that they appear part of the original structure’s design; and (c) concealment elements, measures and techniques that mimic or blend with the underlying structure, surrounding environment or adjacent uses.
21. “Structure” means the same as defined by the FCC in 47 CFR 1.6002(m), which means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or commingled with other types of services). A tree, including live, dead, partially cut down or limbed tree, is not a structure and may not be used for placement of wireless facilities.
22. “Tower” means the same as defined by the FCC in 47 CFR 1.6100(b)(9), which means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.
23. “Transmission equipment” means the same as defined by the FCC in 47 CFR 1.6100(b)(8), which means equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
24. “Type I application” means an application type that shall be limited to applications wherein an applicant seeks to place a new small wireless facility upon an existing structure and either (a) the structure is not an existing tower or base station (as defined for EFR purposes) or (b) the structure is an existing tower or base station (as defined for EFR purposes) but the proposed facility does not qualify as an EFR. If the completed facility would still meet the physical limits and requirements to meet the definition of a small wireless facility after the installation of the new equipment, then the application to install such new equipment is a Type I application.
25. “Type II application” means an application type that shall be limited to applications wherein an applicant is seeking to place a new personal wireless service facility upon an existing structure which does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure and either (a) the structure is not an existing tower or base station (as defined for EFR purposes) or (b) the structure is an existing tower or base station (as defined for EFR purposes) but the proposed facility does not qualify as an EFR.
26. “Type III application” means an application type that shall be limited to applications seeking to install and/or construct a new small wireless facility that involves placement of a new or replacement structure.
27. “Type IV application” means an application type that shall include any applications for the installation of a new personal wireless service facility which does not meet the criteria for Type I, Type II, Type III or Type V.
28. “Type V application” means an eligible facilities request or EFR as defined by the FCC in 47 CFR 1.6100(b)(3), which is any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment.
29. “Utility pole” means a wood or steel vertical structure in the public right-of-way designed to support electric, telephone and similar utility lines. A tower is not a utility pole.
30. “Visibility triangle” means that portion of both the public and private property at any corner bounded by the curb line or edge of roadway of the intersecting streets and a line joining points on the curb or edge of roadway a distance in feet equivalent to the width of the roadway from the point of intersection of the extended curb lines or edges of roadway.
31. “Wireless facility” means the transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), structure(s), and base station(s).
B. Additional Definitions Applicable to Eligible Facilities Requests (EFRs) Only.
1. “Collocation” means the same as defined by the FCC in 47 CFR 1.6100(b)(2), which means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
2. “Eligible support structure” means the same as defined by the FCC in 47 CFR 1.6100(b)(4), which means any tower or base station; provided, that it is existing at the time the relevant eligible facilities request application is filed with the State or local government.
3. “Existing” means the same as defined by the FCC in 47 CFR 1.6100(b)(4), which means a constructed tower or base station is “existing” for purposes of an EFR, if it has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
4. “Site” means the same as defined by the FCC in 47 CFR 1.6100(b)(6), which means that for towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground. The current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a State or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the Section 6409(a) process.
5. “Substantial change” or “substantially change” means the same as defined by the FCC in 47 CFR 1.6100(b)(7), which establishes different criteria based on the particular facility type and location. For clarity, the definition in this chapter reorganizes the FCC’s criteria and thresholds for a substantial change according to the facility type and location.
a. For towers outside the public rights-of-way, a substantial change occurs when:
i. The proposed collocation or modification increases the overall height more than 10 percent or the height of one additional antenna array with separation from the nearest antenna not to exceed 20 feet (whichever is greater); or
ii. The proposed collocation or modification increases the width more than 20 feet from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or
iii. The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four; or
iv. The proposed collocation or modification involves excavation or deployment outside the current boundaries of the leased or owned property surrounding the wireless tower by more than 30 feet in any direction. The site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site.
b. For towers in the public rights-of-way and for all base stations, a substantial change occurs when:
i. The proposed collocation or modification increases the overall height more than 10 percent or 10 feet (whichever is greater); or
ii. The proposed collocation or modification increases the width more than six feet from the edge of the wireless tower or base station; or
iii. The proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no existing ground-mounted equipment cabinets; or
iv. The proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are 10 percent larger in height or volume than any existing ground-mounted equipment cabinets; or
v. The proposed collocation or modification involves excavation or deployment outside the area in proximity to the structure and other transmission equipment already deployed on the ground.
c. In addition, for all towers and base stations wherever located, a substantial change occurs when:
i. The proposed collocation or modification would defeat the existing concealment elements of the eligible support structure as determined by the reviewing authority; or
ii. The proposed collocation or modification violates a prior condition of approval; provided, however, that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets or excavation that is inconsistent with the thresholds for a substantial change described in this definition.
d. The thresholds for a substantial change outlined above are disjunctive. The failure to meet any one or more of the applicable thresholds means that a substantial change would occur. The thresholds for height increases are cumulative limits from the originally permitted eligible support structure. For sites with horizontally separated deployments, the cumulative limit is measured from the originally permitted eligible support structure without regard to any increases in size due to wireless equipment not included in the original design. For sites that existed prior to February 22, 2012, the cumulative limit for vertically separated deployments is measured from the permitted site dimensions as they existed on February 22, 2012, the date that P.L. 112-96 was signed into law. (Ord. 2023-06 § 2, 2023).
17.46.030 Applicability.
A. General. This chapter applies to all requests for the City’s regulatory authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities on property within the City’s territorial and jurisdictional boundaries, unless expressly exempted pursuant to subsection (B) of this section. This includes permit applications submitted to the City for decision in its regulatory capacity for wireless facilities on property or structures owned or controlled by the City and located within the City, including in public rights-of-way; provided, however, that this chapter does not govern whether or under what terms and conditions the City, in its capacity as the property or structure owner, would lease, license or otherwise allow a wireless facility on such property or structures.
B. This chapter shall not be applicable to the following:
1. Wireless facilities installed completely indoors and used to extend personal wireless services into a business or the subscriber’s private residence, such as a “femtocell” or indoor distributed antenna system;
2. OTARD antennas which are regulated pursuant to Chapter 15.40 CMC, Antennas and Satellite Dishes;
3. Antennas and related transmission equipment used in connection with a duly authorized amateur station operated by a Federally licensed amateur radio operator as part of the amateur radio service; provided, that its maximum height does not exceed the height requirements of the zoning district;
4. Wireless facilities or other transmission equipment owned and operated by CPUC-regulated electric companies for use in connection with electrical power, generation, transmission and distribution facilities subject to CPUC General Order 131-D;
5. Temporary wireless facilities parked in a fixed location within the public rights-of-way for no longer than 10 days under an approved special events permit pursuant to Chapter 12.48 CMC. (Ord. 2023-06 § 2, 2023).
17.46.040 General Development Standards.
A. Location Standards. When considering compatibility of a location and structure for Type I, Type II, Type III and Type IV wireless facilities, the City requires applicants to propose those that will be the least intrusive to community character and values. Subsection (B) of this section provides a ranking that describes zoning districts where wireless facilities are least compatible to most compatible with other uses. Subsection (C) of this section provides the City’s preference for placements on parcels over public rights-of-way. Subsection (D) of this section provides structure rankings. Subsection (E) of this section provides additional special considerations for site selection on public rights-of-way.
B. Ranked Locations. Applicants must propose placement in locations with the least intrusive land use designation (i.e., zoning) technically feasible and potentially available. Applications proposing placement in Tier I or II must include a written justification as part of the application submittal, supported by factual and verifiable evidence, that shows no location in a Tier III land use tier is technically feasible and available. The following land use tiers are ranked from least compatible to most compatible:
Tier I (Least compatible):
Senior citizen facility (A-3), multifamily residential (R-4), single-family residential (R-1), and residential and limited commercial (RC).
Tier II:
Improved parklands (P-2), natural parklands and preserves (P-1), and theatrical (A-1).
Tier III (Most compatible):
Central commercial (CC), service commercial (SC), and community and cultural (A-2).
C. Preference for Placement on Public and Private Parcels Over on Public Rights-of-Way. Placement on public and private parcels is strongly preferred over placements in the public rights-of-way because Carmel’s public rights-of-way are narrow in width (26 to 34 feet), with few gutters or sidewalks. Limiting wireless facilities in public rights-of-way is necessary: (1) to ensure that the flow of pedestrian and vehicular traffic, including ingress to, or egress from, any residence, public building, or place of business or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles, is maintained; (2) to provide reasonable access for the use and maintenance of sidewalks, pathways, hydrants, restrooms, trash receptacles, firefighting apparatus, as well as access to locations used for public transportation services; (3) to ensure no interference to the performance of police, firefighter, and other emergency medical personnel; and (4) to maximize public access in the commercial districts and along the coast which have unusually high pedestrian and vehicular traffic volumes. Applications proposing placement in the public right-of-way must include a written justification as part of the application submittal, supported by factual and verifiable evidence, that shows placement on a parcel is not technically feasible and available.
D. Structure Selection. Applicants shall propose placement on the most compatible structure that is technically feasible and available. Any application to place a wireless facility on a structure other than the most compatible structure must include a written justification, based on factual and verifiable evidence, that shows no more compatible structure is technically feasible and available.
1. Structure Selection on Parcels. The following structures are ranked from least compatible to most compatible on parcels:
a. New (nonreplacement) structures.
b. Residential historic structures.
c. Existing building rooftops.
d. Existing (or replacement) nonbuilding structures without existing wireless facilities.
e. Existing nonbuilding structures with existing wireless facilities.
2. Structure Selection on Public Rights-of-Way. New (nonreplacement) structures of any type (pole or nonpole) are the least compatible structures to use on public rights-of-way. Existing (or replacement) utility poles are the most compatible structures. Selection of structures/locations in the public right-of-way is also subject to the limitations in subsection (E) of this section.
E. Additional Special Considerations for Locations in the Public Right-of-Way.
1. Highly Incompatible Locations in the Public Right-of-Way. Applicants shall not propose to install wireless facilities in/on a highly incompatible location in the public right-of-way unless the application is accompanied by a request for a special exception finding under CMC 17.46.080(C). The following is a list of highly incompatible locations:
a. Any location in the public right-of-way within the single-family residential zoning district.
b. Any location in the public right-of-way that would trigger review of consistency with the Secretary of the Interior’s standards for potential impacts to a historic resource on a residential parcel in any Tier I zone in subsection (B) of this section;
c. Any location in the public right-of-way within the area depicted in Figure 1 below.
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FIGURE 1
2. Additional Public Right-of-Way Location Selection Standards. Applicants shall not select existing structures and shall not propose new (nonreplacement) structures in the following locations unless the application includes a written justification, based on factual and verifiable evidence, that shows no structure/location is technically feasible and available outside these locations:
a. Directly in front of the areas which are five feet in either direction from the centerline of each entry door or window in the front facade of any occupied residential building.
b. Within a 500-foot radius from another wireless facility within the public rights-of-way.
3. Public Right-of-Way Location Safety Considerations. Applicants shall not propose adding new structures in the following locations:
a. Any location that would create a hazard to public health or safety.
b. Any location that would adversely affect the normal drainage of surface water, unless an acceptable mitigation is included that will be advantageous to the general public.
c. Any location that would adversely affect vehicular and/or pedestrian traffic or the parking of vehicles including placements in any visibility triangle that obstructs or restricts the view necessary for the safe operation of motor vehicles as determined by the Traffic Safety Committee.
d. Any location that would adversely affect the root structure of any existing trees, or significantly reduce greenbelt area that may be used for tree planting.
e. Any location within 10 feet away from any driveways for police stations, fire stations, or other emergency responder facilities.
f. Any location that would physically interfere with or impede access to any: (i) aboveground or underground infrastructure for traffic control, or public transportation, including, without limitation, any curb control sign, parking meter, vehicular traffic sign or signal, pedestrian traffic sign or signal, barricade reflectors; (ii) public transportation vehicles, shelters, street furniture, or other improvements at any public transportation stop; (iii) aboveground or underground infrastructure owned or operated by any public or private utility agency; (iv) fire hydrant or water valve; (v) doors, gates, sidewalk doors, passage doors, stoops, or other ingress and egress points to any building appurtenant to the right-of-way; or (vi) fire escape.
F. Design Standards.
1. General Requirements. This subsection (F) establishes generally applicable design standards for all Type I, Type II, Type III and Type IV wireless facilities in all locations. The design of Type I, Type II, Type III and Type IV wireless facilities must also comply with applicable administrative guidelines adopted by the Planning Commission pursuant to subsection (F)(2) of this section, Chapter 17.58 CMC, and the City Council pursuant to CMC 17.58.020(E).
a. Stealth/Concealment. All wireless facilities must be stealth to the maximum extent feasible. Colors and materials for wireless facilities shall be muted, subdued, nonreflective and chosen to minimize visibility to the greatest extent feasible.
b. Overall Height. On public and private parcels, wireless facilities may not exceed more than 10 feet above the maximum height allowed by this code for the underlying zoning district where the facility is proposed. In the public right-of-way, wireless facilities on an existing pole may not have an overall height that exceeds the height of the existing pole by more than 10 feet and wireless facilities that involve a replacement pole or a new pole may not have an overall height that is more than 10 feet above the height of the replaced pole or existing poles in the vicinity unless additional height is necessary to comply with CPUC safety standards such as General Order 95.
c. Finishes. All exterior surfaces shall be painted, colored, and/or wrapped in flat, muted, subdued, nonreflective hues that match the underlying structure or blend with the surrounding environment. All exterior surfaces on wireless facilities shall be constructed from, or coated with, graffiti-resistant materials. All finishes shall be subject to the reviewing authority’s prior approval.
d. Noise. All wireless facilities must be compliant with all applicable noise regulations, which includes, without limitation, any noise regulations in this code. The reviewing authority may require the applicant to incorporate appropriate noise-baffling materials and/or noise-mitigating strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations.
e. Lights. Wireless facilities may not include exterior lights other than as may be required under the Federal Aviation Administration, FCC, or other applicable Federal or State governmental regulations. All exterior lights permitted or required to be installed must be installed in locations and within enclosures that mitigate illumination impacts on other properties to the maximum extent feasible. Any lights associated with the electronic equipment shall be appropriately shielded from public view. Any light beacons or lightning arresters shall be included in the overall height calculation.
f. Trees and Landscaping. Wireless facilities shall not be installed (in whole or in part) on new poles within any tree drip line. Wireless facilities may not displace any existing tree or landscape and/or hardscape features. All wireless facilities proposed to be placed in a landscaped area must include landscape and/or hardscape features (which may include, without limitation, trees, shrubs and ground cover) and a landscape maintenance plan. The existing native vegetation shall be maintained to the maximum extent feasible. The reviewing authority may require additional landscape features to screen the wireless facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the stealth techniques required under this chapter. All plants proposed or required must be reviewed as part of a formal landscaping plan and approved by the City.
g. Signage, Advertisements. All wireless facilities must include signage that accurately identifies the equipment owner/operator, the owner/operator’s site name or identification number and a toll-free number to the owner/operator’s network operations center. Wireless facilities may not bear any other signage or advertisements unless expressly approved by the reviewing authority, required by law or recommended under FCC or other Federal governmental agencies for compliance with RF emissions regulations.
h. Security Measures. To prevent unauthorized access, theft, vandalism, attractive nuisance or other hazards, reasonable and appropriate security measures, such as fences, walls and anti-climbing devices may be approved. Security measures shall be designed and implemented in a manner that enhances or contributes to the overall stealth, and the reviewing authority may condition approval on additional stealth elements to mitigate any aesthetic impacts, which may include, without limitation, additional landscape or hardscape features. Barbed wire, razor ribbon, electrified fences or any similar security measures are prohibited. Alarm systems shall not include any visible alarms or audible sirens or other sounds.
i. Fire Safety. All wireless facilities shall be designed by qualified, licensed persons to provide the maximum protection that is technically feasible to prevent electrical and fire hazards. All wireless facilities shall be proactively monitored and maintained to continue and, if possible, improve the safety design.
j. Compliance With Laws. All wireless facilities must be designed and sited in compliance with all applicable Federal, State, regional, and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, Americans With Disabilities Act, general plan and any applicable specific plan, this code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.
k. View Protection. Wireless facilities shall be located and designed to preserve significant coastal views from the public right-of-way in conformance with Section 30251 of the California Coastal Act. The protection of public views should not prevent reasonable development of the site, yet development shall not preclude reasonable protection of any significant coastal view. Designs should respect views enjoyed by neighboring parcels and should not present excess visual mass or bulk to public view or to adjoining properties. Wireless communications facilities, to every extent possible, should be sited to not create visual clutter or negatively affect important public or private views as determined by the reviewing authority. Collocation is encouraged when it will decrease visual impact. This objective is intended to balance the private rights to views from all parcels that will be affected by a proposed wireless facility. No single parcel should enjoy a greater right than other parcels except the natural advantages of each site’s topography. Wireless facilities which substantially eliminate an existing significant view enjoyed on another parcel should be avoided.
2. Administrative Detailed Wireless Facility Design Guidelines. The Planning Commission may develop, and from time to time amend, Administrative Detailed Wireless Facility Design Guidelines consistent with the generally applicable design standards contained in this chapter to clarify the aesthetic and public safety goals and standards in this chapter for City staff, applicants and the public. The Administrative Detailed Wireless Facility Design Guidelines shall provide more detailed standards to implement the general principles articulated in this section and may include specific standards for particular wireless facilities or site locations, but shall not unreasonably discriminate between functionally equivalent service providers. If a conflict arises between the development standards specified in this chapter and the Administrative Detailed Wireless Facility Design Guidelines, the development standards specified in this chapter shall control.
G. Standards Applicable to Type V Wireless Facilities. Type V applications are evaluated under the criteria for an eligible facilities request established by Federal law and FCC regulations to determine whether or not the request involves a “substantial change” to an “eligible support structure” as these terms are defined in CMC 17.46.020. Type V applications also must comply with any generally applicable law, regulation, rule or standard or permit condition reasonably related to public health or safety. (Ord. 2023-06 § 2, 2023).
17.46.050 Wireless Application Types and Submittal Requirements.
A. Application Types.
1. Conditional Use Permit Applications. There shall be four specific types of applications for conditional use permits under this section, which shall include Type I, Type II, Type III, and Type IV applications. The Planning Commission is the initial reviewing authority for Type I through IV applications. Decisions of the Planning Commission may be appealed to the City Council.
a. Type I Applications – Collocations of Small Wireless Facilities. Type I applications shall be limited to applications wherein an applicant seeks to place a new small wireless facility upon an existing structure and either (i) the structure is not an existing tower or base station (as defined for EFR purposes) or (ii) the structure is an existing tower or base station (as defined for EFR purposes) but the proposed facility does not qualify as an EFR. If the completed facility would still meet the physical limits and requirements to meet the definition of a small wireless facility after the installation of the new equipment, then the application to install such new equipment is a Type I application.
b. Type II Applications – Collocations Which Do Not Qualify as a Small Wireless Facility Collocation or EFR. Type II applications shall be limited to applications wherein an applicant is seeking to place a new personal wireless service facility upon an existing structure which does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure and either (i) the structure is not an existing tower or base station (as defined for EFR purposes) or (ii) the structure is an existing tower or base station (as defined for EFR purposes) but the proposed facility does not qualify as an EFR.
c. Type III Applications – New Small Wireless Facilities on New or Replacement Structures. Type III applications shall be limited to applications seeking to install and/or construct a new small wireless facility that involves placement of a new or replacement structure.
d. Type IV Applications – New Towers and All Other Wireless Facilities, Except EFRs. Type IV applications shall include any applications for the installation of a new personal wireless service facility which does not meet the criteria for Type I, Type II, Type III or Type V applications.
2. Administrative Use Permit Applications. There shall be one type of application for an administrative use permit under this section, which shall be a Type V application. The Director is the initial reviewing authority for Type V applications. Decisions of the Director may be appealed to the City Council.
a. Type V Applications – Eligible Facilities Requests or EFRs. Type V applications shall include any applications that purport to meet the criteria for an eligible facilities request under Federal law and FCC regulations.
B. Submittal Requirements.
1. Application Content. All applications for a permit under this chapter must include all the information and materials required by the application for wireless facility form and the applicable wireless facility application checklist adopted by resolution of the Planning Commission. The Planning Commission is authorized to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Planning Commission finds necessary, appropriate or useful for processing any application governed under this chapter. All such requirements must be in written form and publicly stated and available. All applications shall, at a minimum, require the applicant to submit probative evidence to demonstrate that the proposed project will be in compliance with all applicable health and safety laws, regulations or other rules, which includes without limitation all building codes, electric codes and all FCC rules for human exposure to RF emissions. It shall be the obligation of any applicant to use the correct forms and explicitly and correctly identify which type of application they are filing.
2. Application Fee/Deposit. The applicant shall submit with its written materials the full application fee or deposit amount established by City Council resolution. If no application fee has been adopted at the time of application, then the applicant must submit a signed written statement that acknowledges that the applicant will be required to submit a deposit estimated by the Director to reimburse the City for its reasonable costs incurred in connection with the application, including costs of consultants retained by City. Should the deposit be inadequate, an additional deposit shall be required. If the deposit exceeds the actual costs, the difference will be refunded to the applicant.
3. Application Submittal. All applications submitted under this chapter must be submitted to the City during the office hours specified for intake of applications submitted under this chapter as established by the Community Planning and Building Department and posted on the City’s webpage. Applicants may submit one application or multiple applications whenever feasible and not prejudicial to other applicants. Any application received in a different manner or outside those established intake hours, whether delivered in-person, by mail or through any other means, will not be considered duly filed whether the City retains the submitted materials or not.
4. Other Permits and Reviews That May Be Required. In addition to any permit required by this chapter, the applicant must obtain all other permits and regulatory approvals as may be required by any other Federal, State, or local laws or regulations for the construction of the proposed facility, which includes, without limitation, any applicable permits or reviews listed below:
a. Forest and Beach Commission Review. Any proposed project that involves a request to remove or prune any tree type identified in Chapter 17.48 CMC must be approved by the Forest and Beach Commission prior to determining completeness of the application.
b. Historic Resources Board Review. In accordance with CMC 17.32.220, facilities proposed within a historic district or within the boundaries of an historic property included in the inventory are subject to additional review under Chapter 17.32 CMC prior to consideration by the Planning Commission.
c. Coastal Development Permit Review. In accordance with CMC 17.52.090, any person wishing to undertake any development in the coastal zone shall obtain a coastal development permit unless excluded from coastal permit requirements pursuant to CMC 17.52.100.
5. Voluntary Community Meetings. The City strongly encourages, but does not require, prospective applicants and applicants to schedule, notice, arrange, and attend one or more voluntary community meetings with all interested members of the public. Community meetings may be conducted before or after application submittal. This community meeting is intended to give applicants the opportunity to hear from members of the public regarding the proposed project and any alternative locations or designs. Voluntary community meetings do not cause any FCC shot clock to begin. (Ord. 2023-06 § 2, 2023).
17.46.060 Application Review Procedures.
A. Completeness Review By Director.
1. In addition to exercising other duties and powers listed in CMC 17.52.030 and elsewhere in this title relevant to the application, the Director shall review each application and determine whether or not the application is complete and inform the applicant in writing that the application is complete or that additional information is needed to complete the application consistent with the time line in CMC 17.52.020 and the applicable FCC shot clock.
2. If the Director determines that the application is defective or incomplete, they shall promptly deliver a notice of incompleteness to the applicant in order to pause the applicable FCC shot clock.
3. The Director may take such other steps as may be required for the City to timely act upon applications for placement of wireless facilities, including entering into agreements with applicants to extend the time for action on any application under the applicable FCC shot clock.
B. Consultants.
1. Use of Consultants. Where deemed reasonably necessary by the City, the City may retain the services of professional consultants to assist the City in carrying out its duties in reviewing and making decisions on applications. The applicant and private landowner, if applicable, shall be jointly and severally responsible for payment of all the reasonable and necessary costs incurred by the City for such services. The City shall provide the applicant with a detailed invoice of time spent and the nature of the review. In no event shall that responsibility be greater than the actual cost to the City of such engineering, legal, or other consulting services.
2. Advance Deposits for Consultant Costs. The City may require advance periodic monetary deposits held by the City on account of the applicant or landowner to secure the reimbursement of the City’s consultant expenses. The City Council shall establish policies and procedures for the fixing of escrow deposits and the management of payment from them. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the City to pay current or anticipated vouchers, the City shall cause the applicant or landowner to deposit additional sums to meet such expenses or anticipated expenses in accordance with policies and procedures established by the City Council. No reviewing agency shall be obligated to proceed unless the applicant complies with escrow deposit requirements.
3. Independent Consultants Retained by Fire Safety Authority. The Fire Safety Authority has the authority to select and retain an independent consultant with expertise and/or specialized training in fire safety and fire hazard mitigation and prevention satisfactory to the Fire Safety Authority in connection with any application. The Fire Safety Authority may request independent consultant review on any matter committed to the Fire Safety Authority for review or approval. Subject to applicable laws, if the Fire Safety Authority elects to retain an independent consultant in connection with any permit application, the applicant shall be responsible for the actual and reasonable costs in connection with the services provided, which may include without limitation any actual and reasonable costs incurred by the independent consultant to attend and participate in any meetings or hearings. The same procedures for fee deposits, cost reimbursements and refunds to the applicant as described in this section shall be applicable to independent consultant review required by the Fire Safety Authority.
C. Director Denial Without Prejudice Due to Failure to Respond to Notice(s) of Incompleteness. To promote efficient review and timely decisions, any application governed under this chapter regardless of type may be denied by the Director without prejudice when the applicant fails to tender a substantive response to the City within 120 calendar days after the Director deems the application incomplete in a written notice to the applicant. The Director, in the Director’s discretion, may grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the one hundred twentieth day that shows good cause to grant the extension. Good cause for an extension shall include, without limitation, delays due to circumstances outside the applicant’s reasonable control.
D. Environmental Review. Environmental review of the proposed project to protect and assure that citizens of the community contribute to the preservation and the enhancement of the environment shall be performed in accordance with Chapter 17.60 CMC.
E. Fire Safety Authority Review. After submittal by the applicant, the relevant application materials shall be transmitted to the Fire Safety Authority for their review and any recommended conditions.
F. Staff Report and Recommendations. A staff report shall be prepared for Type I through IV applications involving a public hearing. Staff reports shall evaluate the compliance of the proposed project with the applicable City policies, regulations and requirements. The report shall recommend, with appropriate findings, the approval, approval with conditions, or disapproval of the application, based on the project evaluation. The report and supporting materials will be made available to the public in advance of the public hearing. (Ord. 2023-06 § 2, 2023).
17.46.070 Public Notices, Public Hearings, Decision Notices and Appeals.
A. Application Submittal Notices – For Types I Through V.
1. Posted and Hand-Delivered Notices. Within five days after an application is duly filed with the Director, (a) the applicant shall (i) post notice on the proposed project site in a location near to and visible from the public rights-of-way or in the public right-of-way if the project site is in the public right-of-way; and (ii) provide the Director an affidavit that such notice has been posted; and (b) the Director shall provide a hand-delivered postcard notice to neighbors within a 100-foot radius of the site. The applicant is responsible for maintaining and replacing the posted notice as necessary during the duration of the application review process until the reviewing authority acts on the application. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for the duration of the notice period. The posted notice shall be no more than two square feet and not violate CMC 17.40.070. The notice/sign shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the public right-of-way. The City encourages applicants to consult with the Department on placement locations to avoid any potential hazards.
2. City Website Notice. Within 10 days after an application is duly filed with the Department, the Director shall post notice of the submittal on the City’s website.
3. Notice Content. The notices required by this subsection (A) shall include: (a) the project location with both an approximate street address and GPS coordinates; (b) the City’s permit application number; (c) the application type and a general project description with photo simulations; (d) the applicant’s contact information as provided on the application submitted to the City; (e) a URL for the City’s website page where application information can be obtained once uploaded in accordance with subsection (A)(2) of this section; and (f) a statement as to whether a public hearing will be required for the application.
B. Public Hearing Notices (For Types I Through IV). Public hearing notices shall be provided consistent with the requirements of CMC 17.52.110, except that the mailing radius shall be 500 feet.
C. Public Hearings (For Types I Through IV). The Planning Commission shall conduct a public hearing upon each conditional use permit application, consistent with the procedures in CMC 17.52.160.
D. Decision Notices.
1. For Types I Through V. Within five calendar days after the Planning Commission makes a decision on a Type I, II, III or IV application or the Director makes a decision on a Type V application, the Director shall: (a) deliver a written decision notice to the applicant; (b) post written notice of the decision at the proposed project site; (c) provide a hand-delivered written notice of the decision to neighbors within a 100-foot radius of the site; and (d) post the decision on the City’s website.
2. Content of Decision Notices for Types I Through V. The written notice sent to the applicant, posted at the proposed project site and hand-delivered to neighbors must contain: (a) the decision made (approval or denial); (b) either the reasons for the decision or where the reasons for the decision are available; (c) if the decision is a denial, a statement whether the denial is with prejudice or without prejudice for the purposes of CMC 17.52.170(D); and (d) instructions for how and when to file any appeal.
3. For Director Denials Without Prejudice. The Director must send a written notice to the applicant to deny an application without prejudice due to failure to respond to notice(s) of incompleteness pursuant to CMC 17.46.060(A)(1). The written notice shall state: (a) the number of days that have passed without the applicant tendering a substantive response to the City after the Director last deemed the application incomplete in a written notice to the applicant; (b) a statement that denial is without prejudice; and (c) instructions for how and when to file any appeal.
E. Appeals.
1. For Types I Through V. Within 10 calendar days after the Director issues the decision notices pursuant to subsection (D)(1) or (3) of this section, any interested person may file a written appeal for cause in accordance with the provisions in Chapter 17.54 CMC; provided, however, that (a) the time for filing an appeal and the notice provisions in this chapter shall control over those in Chapter 17.54 CMC and (b) appeals from an approval shall not be permitted when based solely on environmental effects from RF emissions exposure from the approved facility that was found compliant with applicable FCC regulations and guidelines.
2. For Director Denials Without Prejudice. Within 10 calendar days after the Director issues the decision notice pursuant to subsection (D)(3) of this section denying an application without prejudice, the applicant may file a written appeal for cause in accordance with the provisions in Chapter 17.54 CMC; provided, however, that the time for filing an appeal and notice provisions in this chapter shall control over those in Chapter 17.54 CMC.
3. Appeals to City Council. The City Council shall be the appellate authority for all appeals in accordance with the provisions of Chapter 17.54 CMC. The City Council shall issue a written decision that contains the reasons for the decision, and such decision shall be the final action of the City and not subject to any further administrative appeals. (Ord. 2023-06 § 2, 2023).
17.46.080 Findings Required.
A. Types I to IV Applications.
1. Required Findings for Approval. The reviewing authority may approve wireless facility applications only when the reviewing authority makes all the following findings:
a. The proposed wireless facility will not result in adverse visual impacts or have an adverse impact on property values because it complies with all applicable development standards in CMC 17.46.040 and the Administrative Detailed Wireless Facility Design Guidelines;
b. If applicable, to the extent the proposed wireless facility does not comply with all applicable development standards in CMC 17.46.040 and the Administrative Detailed Wireless Facility Design Guidelines, the applicant has requested a special exception and the findings for granting a special exception pursuant to subsection (C) of this section can be made;
c. The proposed wireless facility will comply with all applicable FCC regulations and guidelines for human exposure to RF emissions and will not, either individually or cumulatively with other transmitters in the vicinity, result in RF exposures that exceed the FCC’s maximum permissible exposure level for the general population;
d. The proposed wireless facility will comply with all applicable fire safety and public safety standards;
e. The proposed wireless facility will comply with fall zone requirements in the Administrative Detailed Wireless Facility Design Guidelines;
f. All public notices required for the application have been given;
g. All the findings required for a use permit pursuant to CMC 17.64.010;
h. All the findings for discretionary design review approval pursuant to CMC 17.58.060;
i. If applicable, all the findings required for a coastal development permit.
2. Conditional Approvals. Subject to any applicable Federal or State laws, nothing in this chapter is intended to limit the reviewing authority’s ability to conditionally approve any application governed under this chapter as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in the general plan and any applicable specific plan, this code, or this chapter.
B. Type V Applications (EFRs).
1. Required Findings for Approval. The reviewing authority may approve or conditionally approve an application for an EFR administrative design review approval when the reviewing authority finds that the proposed project:
a. Involves collocation, removal or replacement of transmission equipment on an existing wireless tower or base station; and
b. Does not substantially change the physical dimensions of the existing wireless tower or base station in that it meets each and every one of the applicable criteria for an eligible facilities request stated in the definition of “substantial change,” after application of the definitions in 47 CFR 1.6100(b). The reviewing authority shall make an express finding for each criterion.
2. Findings for Denial. The reviewing authority may deny without prejudice any application for an EFR administrative design review approval when the reviewing authority finds that the proposed project:
a. Does not meet the findings required in subsection (B)(1) of this section;
b. Involves the replacement of the entire eligible support structure; or
c. Violates any generally applicable law, regulation, rule or standard or permit condition reasonably related to public health or safety.
3. Conditional Approvals. Subject to any applicable limitations in Federal or State law, nothing in this chapter is intended to limit the reviewing authority’s authority to conditionally approve an application for an EFR administrative design review approval to comply with all generally applicable laws and to protect and promote the public health and safety.
C. Special Exceptions for Federal or State Preemption or Minor Deviations in Design (Types I to IV Only).
1. Preface. The provisions in this section establish the circumstances under which the City may grant a special exception to the standards in this chapter, Chapter 17.58 CMC or the Administrative Detailed Wireless Facility Design Guidelines, but only if specifically requested by the applicant in writing at the time of application submittal and only to the extent necessary to avoid conflict with applicable Federal or State law or it is a minor deviation that achieves all of the applicable design objectives of this chapter, as well as, or better than, would be achieved by adherence to the adopted design guidelines. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance.
2. Required Findings. The reviewing authority shall not grant any special exception unless the reviewing authority finds the following:
a. The applicant has shown that denial of an application will result in an effective prohibition or otherwise violate Federal law; or the applicant has shown that denial of an application will violate State law; or the applicant has shown that it is a minor deviation that achieves all of the applicable design objectives of this chapter, as well as, or better than, would be achieved by adherence to the adopted design guidelines;
b. The special exception requested by the applicant does not compromise or excuse compliance with any fire safety or other public health and safety requirements; and
c. The special exception is narrowly tailored such that any deviation from the requirements of this chapter is only to extent necessary for compliance with Federal or State law or to achieve all of the applicable design objectives of this chapter, as well as, or better than, would be achieved by adherence to the adopted design guidelines.
3. Evidentiary Standard. The applicant shall have the burden to prove to the reviewing authority that an exception should be granted pursuant to this section. The standard of evidence shall be the same as required by applicable Federal or State law for the issue raised in the applicant’s request for a special exception. (Ord. 2023-06 § 2, 2023).
17.46.090 Standard Conditions of Approval.
A. Wireless Facility Standard Terms and Conditions. All wireless facilities approved under this chapter or deemed approved by the operation of law shall be automatically subject to the wireless facility standard terms and conditions adopted by the Planning Commission by resolution, unless modified by the reviewing authority in an approval decision.
B. Modified Approval Conditions. The reviewing authority, when granting approval of a permit application, may modify, add to or remove standard conditions set forth in the wireless facility standard terms and conditions adopted by the Planning Commission by resolution, as the reviewing authority deems necessary or appropriate to: (1) protect and/or promote the public health, safety and welfare; (2) tailor the standard conditions to the particular facts and circumstances associated with the project; and/or (3) memorialize any changes to the proposed project needed for compliance with the City’s Municipal Code, generally applicable health and safety requirements and any other applicable laws. (Ord. 2023-06 § 2, 2023).
17.46.100 Violations.
Any use or condition caused or permitted to exist in violation of any provision of this chapter shall be and hereby is declared a public nuisance and may be subject to administrative citations as set forth in Chapter 18.04 CMC, summary abatement pursuant to Chapter 15.57 CMC, California Code of Civil Procedure Section 731, or any other remedy available to the City. (Ord. 2023-06 § 2, 2023).