Chapter 18.205 WIRELESS COMMUNICATION FACILITIES

Chapter 18.205
WIRELESS COMMUNICATION FACILITIES FOR NEW AND SUBSTANTIALLY CHANGED WIRELESS FACILITIES

Sections:

18.205.010 Legislative intent.

18.205.020 Definitions.

18.205.030 Applicability.

18.205.040 Approvals required.

18.205.050 Application requirements.

18.205.060 Notice.

18.205.070 Decisions – Limited exceptions – Appeals.

18.205.080 Standard conditions of approval.

18.205.090 Site location guidelines.

18.205.100 Development standards.

18.205.110 Temporary wireless facilities.

18.205.120 Amortization of nonconforming wireless facilities.

18.205.130 Abandonment or discontinuation – Relocation.

Prior legislation: DC 2012 §§ 122-664 – 122-677; Ords. 12-4 and 12-5.

18.205.010 Legislative intent.

A. The city of Concord intends this chapter to establish reasonable, uniform and comprehensive standards and procedures for wireless facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the city’s territorial boundaries, consistent with and to the extent permitted under federal and California State law. The standards and procedures contained in this chapter are intended to, and should be applied to, protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless services with the city’s local values, which include without limitation the aesthetic character of the city of Concord, its neighborhoods and community.

B. This chapter is not intended to, nor shall it be interpreted or applied to:

1. Prohibit or effectively prohibit any personal wireless service provider’s ability to provide personal wireless services;

2. Prohibit or effectively prohibit any entity’s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules, regulations or other legal requirements for rights-of-way management;

3. Unreasonably discriminate among providers of functionally equivalent services;

4. Deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC’s regulations concerning such emissions;

5. Prohibit any collocation or modification that the city may not deny under federal or California State law;

6. Impose any unfair, unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee is charged; or

7. Otherwise authorize the city to preempt any applicable federal or California State law. [Ord. 17-11 § 3 (Exh. 1)].

18.205.020 Definitions.

The abbreviations, phrases, terms and words used in this chapter will have the meanings assigned to them in this section or, as may be appropriate, in Chapter 18.20 CDC, Article II (Definitions), as may be amended from time to time, unless context indicates otherwise. Undefined phrases, terms or words in this section will have the meanings assigned to them in 47 U.S.C. Section 702, as may be amended from time to time, and, if not defined therein, will have their ordinary meanings. In the event that any definition assigned to any phrase, term or word in this chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.

“Approval authority” means the commission, board or official responsible for review of permit applications and vested with the authority to approve or deny such applications. The approval authority for a minor use permit is the zoning administrator or, on appeal, the planning commission. The approval authority for an administrative permit is the planning division or, on appeal, the zoning administrator.

“Architectural integration” means concealment techniques that completely screen all transmission equipment from public view and integrate the transmission equipment with the underlying structure and surrounding built environment such that, given the particular context, the average, untrained observer does not recognize the existence of the wireless facility or concealment technique. These facilities are so integrated and well-hidden that the average, untrained observer would need special knowledge to recognize their existence. Architecturally integrated projects must be designed by a California-licensed architect. Architectural integration concealment techniques include, but are not limited to: (1) transmission equipment placed completely within existing architectural features such that the installation causes no visible change to the underlying structure and (2) new architectural features that mimic the underlying building in architectural style, physical proportion and quality of construction materials. Architectural features commonly used as architectural integration concealment include, but are not limited to, church steeples, cupolas, bell towers, clock towers, pitched faux-roofs and water tanks. Further, whether a wireless facility qualifies as an architecturally integrated facility depends on the context that exists at a given location and is evaluated on a case-by-case basis.

“Base station” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(1), as may be amended, which defines that term as 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 as defined in 47 C.F.R. Section 1.40001(b)(9) or any equipment associated with a tower. 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. 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). 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 section, supports or houses equipment described in 47 C.F.R. Sections 1.40001(b)(1)(i) and (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. 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 C.F.R. Sections 1.40001(b)(1)(i) and (ii).

“Collocation” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(2), as may be amended, which defines that term as 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. As an illustration and not a limitation, the FCC’s definition effectively means “to add” and does not necessarily refer to more than one wireless facility installed at a single site.

“CPCN” means a “certificate of public convenience and necessity” granted by the CPUC or its duly appointed successor agency pursuant to California Public Utilities Code Section 1001 et seq., as may be amended.

“CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or its duly appointed successor agency.

“Director” means the community and economic development director or the community and economic development director’s designee.

“FCC” means the Federal Communications Commission or its duly appointed successor agency.

“Micro wireless facility” means a wireless facility having dimensions no larger than 24 inches in length, 15 inches in width, and 12 inches in height and an exterior antenna, if any, no longer than 11 inches.

“OTARD” means any over-the-air reception device subject to 47 C.F.R. Section 1.4000 et seq., as may be amended, and which includes satellite television dishes not greater than one meter in diameter.

“Personal wireless service facilities” means the same as defined in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended, which defines the term as facilities that provide personal wireless services.

“Personal wireless services” means the same as defined in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended, which defines the term as commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services.

“Pseudo-natural integration” means concealment techniques that completely screen all transmission equipment from public view and integrate the transmission equipment with the surrounding natural environment. Given that pseudo-natural integration mimics natural features, these manmade concealment techniques are more obvious to the average, untrained observer such that the observer may not need special knowledge to recognize the existence of a pseudo-naturally integrated wireless facility. Such concealment techniques include faux-trees and other faux-plants or faux-geologic features (monoshrubs, monorocks and other faux-natural features).

“RF” means radio frequency or electromagnetic waves generally between 30 kHz and 300 GHz in the electromagnetic spectrum range.

“Section 6409” means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. Section 1455(a), as may be amended.

“Small wireless facilities” means wireless communication facilities that meet the following conditions: (1) the facilities are mounted on structures 50 feet or less in height including their antennas, or are mounted on structures no more than 10 percent taller than adjacent structures, or 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; and (2) with an antenna no more than three cubic feet and total wireless equipment no more than 28 cubic feet, or as defined by the Federal Communications Commission in 47 C.F.R Section 1.6002(l), as may be amended or superseded.

“Temporary wireless facilities” means portable wireless facilities intended or used to provide personal wireless services on a temporary or emergency basis, such as a large-scale special event in which more users than usual gather in a confined location or when a disaster disables permanent wireless facilities. Temporary wireless facilities include, without limitation, cells-on-wheels (“COWs”), sites-on-wheels (“SOWs”), cells-on-light-trucks (“COLTs”) or other similarly portable wireless facilities not permanently affixed to site on which it is located.

“Tower” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(9), as may be amended, which defines that term as 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. Examples include, but are not limited to, monopoles, monotrees and lattice towers.

“Transmission equipment” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(8), as may be amended, which defines that term as 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.

“Wireless” means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum.

“Wireless communication facility” or “wireless facility” means the collective or combined equipment, network components or eligible support structures that are necessary or integral in providing personal wireless services, including but not limited to antennas, transmission equipment, towers, and base stations, or as otherwise defined by state or federal law and regulations. [Ord. 20-2 § 6 (Exh. A); Ord. 17-11 § 3 (Exh. 1)].

18.205.030 Applicability.

A. Applicable Wireless Facilities. This chapter applies to all existing wireless facilities within the city and all applications and requests for approval to construct, install, modify, collocate, relocate or otherwise deploy wireless facilities in the city, whether located or proposed to be located on private property or in the public right-of-way, unless exempted under subsection (B) of this section or governed under Chapter 18.207 CDC pursuant to subsection (C) of this section.

B. Exempt Wireless Facilities. Notwithstanding the provisions in subsection (A) of this section, the provisions in this chapter will not be applicable to:

1. Wireless facilities owned and operated by the city for public purposes;

2. Amateur radio facilities;

3. OTARD antennas;

4. Wireless facilities installed completely indoors and intended to extend signals for personal wireless services in a personal residence or a business (such as a femtocell or indoor distributed antenna system);

5. Wireless facilities or 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; and

6. Wireless facilities that are micro wireless facilities that are suspended on cables strung between existing utility poles in compliance with applicable codes by or for a communications services provider authorized to occupy the rights-of-way.

C. Request for Approval Pursuant to Section 6409. Any requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section 6409 will be first reviewed under Chapter 18.207 CDC.

D. Small Wireless Facilities. Notwithstanding any other provision of this chapter, all “small wireless facilities” as defined by the FCC in 47 C.F.R. Section 1.6002(l), as may be amended or superseded, are subject to a permit as specified in a city council policy and procedure, which may be adopted, amended and/or repealed by a resolution of the city council. All small wireless facilities shall comply with the city council policy and procedure. If such policy and procedure is repealed and not replaced, an application for a small wireless facility shall be processed pursuant to this chapter. [Ord. 20-2 § 6 (Exh. A); Ord. 17-11 § 3 (Exh. 1)].

18.205.040 Approvals required.

A. Administrative Permit. An administrative permit subject to the planning division’s prior review and approval in accordance with the procedures and standards in Chapter 18.420 CDC (Administrative Permits) is required for:

1. Wireless facilities installed on city-owned infrastructure in the public rights-of-way pursuant to a valid master license agreement with the city;

2. All new architecturally integrated wireless facilities;

3. All pseudo-naturally integrated wireless facilities in preferred locations (as defined in CDC 18.205.090(A)) not within the public rights-of-way;

4. Collocations, modifications or other changes to existing architecturally integrated facilities not subject to Section 6409;

5. Collocations, modifications or other changes to existing pseudo-naturally integrated facilities not subject to Section 6409;

6. Wireless facilities installed on lattice electric transmission towers.

B. Minor Use Permit. A minor use permit subject to the zoning administrator’s prior review and approval in accordance with the procedures and standards in Chapter 18.435 CDC (Minor Use Permits and Use Permits) is required for:

1. Any wireless facilities that require an exception pursuant to CDC 18.205.070(C);

2. All new pseudo-naturally integrated wireless facilities in discouraged locations (as defined in CDC 18.205.090(B));

3. Any facility in the public rights-of-way not placed on city-owned infrastructure pursuant to a valid master license agreement with the city;

4. Any other permanent wireless facility that is not subject to an administrative permit under subsection (A) of this section.

C. Temporary Use Permit. A temporary use permit subject to the director’s prior review and approval in accordance with the procedures and standards in CDC 18.205.110 is required for any temporary wireless facility, unless deployed in connection with an emergency pursuant to CDC 18.205.110(B).

D. Design and Site Development Review. The planning division or the zoning administrator may refer any wireless facility application for an administrative permit or a minor use permit, respectively, to the design review board for a recommendation and/or decision, or to the planning commission for a decision when the proposed facility may involve a significant design or policy issue.

E. Other Permits and Regulatory Approvals. In addition to any administrative permit, minor use permit or other permit required under this chapter, the applicant must obtain all other permits and regulatory approvals as may be required by any other federal, state or local government agencies, which includes without limitation building permits, encroachment permits, electrical permits, plumbing permits and any other permits and/or regulatory approvals issued by other departments or divisions within the city. Furthermore, any permit or approval granted under this chapter or deemed granted or deemed approved by law shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or regulatory approvals. [Ord. 17-11 § 3 (Exh. 1)].

18.205.050 Application requirements.

A. Application Required. The approval authority shall not approve any request for an administrative permit or minor use permit except upon a duly filed application consistent with this section and any other written rules the city or the director may establish from time to time in any publicly stated format.

B. Application Content. All applications for an administrative permit or minor use permit must include all the content, information and materials required by the director for the application. The city council authorizes the director 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 director finds necessary, appropriate or useful for processing any application governed under this chapter. The city council further authorizes the director to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the director deems necessary or appropriate to organize, document and manage the application intake process. All such rules and regulations must be in written form and publicly stated to provide applicants with prior notice.

C. Procedures for a Duly Filed Application. Any application for an administrative permit or minor use permit will not be considered duly filed unless submitted in accordance with the procedures in this subsection (C).

1. Pre-Submittal Conference. Before application submittal, the applicant must schedule and attend a pre-submittal conference with the planning division for all proposed projects (a) in residential zoning districts (RR, RS, RL, RM and RH, as may be amended or superseded); (b) in any districts subject to a specific plan or specific architectural guidelines; or (c) located in the public right-of-way and subject to a minor use permit. Pre-submittal conferences for all other proposed projects are strongly encouraged but not required. The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification and review process; any latent issues in connection with the proposed or existing wireless tower or base station, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that city staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The city may require a fee or deposit to reimburse the city for its reasonable costs to provide the services rendered in the pre-submittal conference. The director may, in the director’s discretion, grant a written exemption to the submittal appointment under subsection (C)(2) of this section and/or for a specific requirement for a complete application to any applicant who (a) schedules, attends and fully participates in any pre-submittal conference and (b) shows to the director’s satisfaction that such specific requirement duplicates information already provided in other materials to be submitted or is otherwise unnecessary to the city’s review under facts and circumstances in that particular case. Any written exemption will be limited to the project discussed at the pre-submittal conference and will not be extended to any other project.

2. Submittal Appointment. All applications must be submitted in person to the city at a pre-scheduled appointment with the director. Applicants may generally submit one application per appointment, but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The planning division may develop alternative rules that allow multiple (i.e., “batched”) applications to be submitted at the same time. Any application received without an appointment or the required application fee, whether delivered in person, by mail or through any other means, will not be considered duly filed unless the applicant received a written exemption from the planning division at a pre-submittal conference.

3. Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request (such as an email) to the planning division. The planning division shall use reasonable efforts to provide applicants with an appointment within not more than 15 working days after a written request is received and, if applicable, confirm that the applicant complied with the pre-submittal conference requirement.

D. Procedures for a Neighborhood Meeting. Except as modified by this section, all projects proposed to be located on private property within 300 feet of a residential district shall require a neighborhood meeting in accordance with CDC 18.405.050. The applicant shall provide the required notice materials to the planning division, which will send the required notice to all of the adjacent residents and property owners in accordance with the city’s public notification requirements and procedures.

E. Applications Deemed Withdrawn. To promote efficient review and timely decisions, and consistent with CDC 18.405.040, any application governed under this chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the planning division within 180 calendar days after the planning division deems the application incomplete in a written notice to the applicant. The planning division may, in the planning division’s discretion, grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the one-hundred-eightieth day that shows good cause to grant the extension. Delays due to circumstances outside the applicant’s reasonable control will be considered good cause to grant the extension. [Ord. 17-11 § 3 (Exh. 1)].

18.205.060 Notice.

A. General Notice Requirements. Public notice in accordance with the provisions in CDC 18.435.050 (Review, notice, and hearing) and 18.500.020 (Notice of public hearing) shall be required for all minor use permit applications.

B. Deemed-Approval Notices. Not more than 30 calendar days before the applicable FCC time frame for review expires, and in addition to the public notice required in subsection (A) of this section, an applicant for an administrative permit or minor use permit must provide a posted notice at the project site that states the project will be automatically deemed approved pursuant to California Government Code Section 65964.1 unless the city approves or denies the application or the applicant tolls the time frame for review within the next calendar 30 days. The posted notice must be compliant with all applicable provisions in CDC 18.500.020(B)(2)(b). The public notice required under this subsection (B) will be deemed given when the applicant delivers written notice to the planning division that shows the appropriate notice has been posted at the project site. Notwithstanding anything to the contrary in this chapter, the approval authority shall be permitted to act on an application at any time so long as the public notice required in subsection (A) of this section has occurred.

C. Decision Notices. Within five working days after the approval authority acts on an application for an administrative permit or minor use permit or before the FCC shot clock expires (whichever occurs first), the approval authority or its designee shall send a written notice to the applicant. In the event that the approval authority denies the application (with or without prejudice), the written notice to the applicant must contain (1) the reasons for the decision and (2) instructions for how and when to file an appeal. [Ord. 17-11 § 3 (Exh. 1)].

18.205.070 Decisions – Limited exceptions – Appeals.

A. Required Findings for Approval. The approval authority may approve or conditionally approve any application for any administrative permit or minor use permit when the approval authority finds that:

1. The proposed wireless facility complies with all required findings for an administrative permit approval in CDC 18.420.050(A) (Review and decision) or a minor use permit approval in CDC 18.435.050(A) (Review, notice, and hearing), as applicable;

2. The proposed wireless facility complies with all applicable development standards described in CDC 18.205.100, or qualifies for a limited exception pursuant to subsection (C) of this section;

3. The applicant demonstrated that its proposed wireless facility will be in compliance with all applicable FCC rules and regulations for human exposure to RF emissions;

4. The applicant demonstrated a good-faith effort to identify and evaluate more-preferred locations and potentially less-intrusive designs; and

5. The applicant provided the approval authority with a meaningful comparative analysis that shows all less-intrusive alternative locations and designs identified in the administrative record are either technically infeasible or not potentially available.

B. Conditional Approvals – Denials Without Prejudice. Subject to any applicable limitations in federal or state law, nothing in this chapter is intended to limit the approval authority’s ability to conditionally approve or deny without prejudice any application for an administrative permit or minor use permit as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in this chapter or the general plan.

C. Limited Exceptions for Personal Wireless Service Facilities. In the event that an applicant claims that strict compliance with the site location guidelines in CDC 18.205.090 or the development standards in CDC 18.205.100 would effectively prohibit the applicant’s ability to provide personal wireless services, the approval authority may grant a limited exception from such requirements to the extent necessary to prevent an effective prohibition when the approval authority finds:

1. The proposed wireless facility qualifies as a “personal wireless service facility” as defined in 47 U.S.C. Section 332(c)(7)(C)(ii), as may be amended or superseded;

2. The applicant provided the approval authority with a reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility;

3. The applicant provided the approval authority with a written statement that contains a detailed and fact-specific explanation as to why the proposed wireless facility cannot be deployed in compliance with the applicable provisions in this chapter, the Concord Municipal Code, the general plan and/or any specific plan;

4. The applicant provided the approval authority with a meaningful comparative analysis with the factual reasons why all alternative locations and/or designs identified in the administrative record (whether suggested by the applicant, the city, public comments or any other source) are not technically feasible or potentially available to reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility; and

5. The applicant demonstrated to the approval authority that the proposed location and design is the least noncompliant configuration that will reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility, which includes without limitation a meaningful comparative analysis into multiple smaller or less intrusive wireless facilities dispersed throughout the intended service area.

D. Appeals. Any interested person or entity may appeal any decision by the approval authority in accordance with the standards and procedures in Chapter 18.510 CDC (Appeals and Calls for Review), except as modified in this subsection. On the next available meeting date after the appeal period lapses, or as soon as reasonably feasible thereafter, the appellate authority shall hold a de novo public hearing to consider and act on the application in accordance with the applicable provisions in the general plan, any applicable specific plan and all applicable provisions in the Concord Municipal Code. Appeals from an approval will not be permitted to the extent that the appeal is based on environmental effects from RF emissions that comply with all applicable FCC regulations. [Ord. 17-11 § 3 (Exh. 1)].

18.205.080 Standard conditions of approval.

In addition to all other conditions adopted by the approval authority, all administrative permits and minor use permits, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this section. The approval authority (or the appellate authority on appeal) shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved facility consistent with the goals of this chapter.

A. Permit Term. This permit will automatically expire 10 years and one day from its issuance, except when California Government Code Section 65964(b), as may be amended or superseded in the future, authorizes the city to establish a shorter term for public safety or substantial land use reasons. Any other permits or approvals issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law.

B. Strict Compliance with Approved Plans. Before the permittee submits any applications to the building division, the permittee must incorporate this permit, all conditions associated with this permit and the approved photo simulations into the project plans (the “approved plans”). The permittee must construct, install and operate the wireless facility in strict compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, must be submitted in a written request subject to the planning division’s prior review and approval, who may refer the request to the original approval authority if the planning division finds that the requested alteration, modification or other change substantially deviates from the approved plans or implicates a significant or substantial land-use concern.

C. Build-Out Period. This permit will automatically expire one year from the approval or deemed-granted date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The planning division may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 calendar days prior to the automatic expiration date in this condition.

D. Maintenance Obligations – Vandalism. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved plans and all conditions in this permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the city, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred. Each year after the permittee installs the wireless facility, the permittee shall submit a written report to the director, in a form acceptable to the director, that documents the then-current site condition.

E. Property Maintenance. The permittee shall ensure that all equipment and other improvements to be constructed and/or installed in connection with the approved plans are maintained in a manner that is not detrimental or injurious to the public health, safety, and general welfare and that the aesthetic appearance is continuously preserved, and substantially the same as shown in the approved plans at all times relevant to this permit. The permittee further acknowledges that failure to maintain compliance with this condition may result in a code enforcement action.

F. Compliance with Laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law (“laws”) applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this permit, which includes without limitation any laws applicable to human exposure to RF emissions. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee’s obligations to maintain compliance with all laws. In the event that the city fails to timely notice, prompt or enforce compliance with any applicable provision in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation, the applicant or permittee will not be relieved from its obligation to comply in all respects with all applicable provisions in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation.

G. Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee’s or its authorized personnel’s construction, installation, operation, modification, maintenance, repair, removal and/or other activities at the site. Impacts of radio frequency emissions on the environment, to the extent that such emissions are compliant with all applicable laws, are not “adverse impacts” for the purposes of this condition. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines except during normal construction hours authorized by the Concord Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the city. The director or the director’s designee may issue a stop work order for any activities that violate this condition.

H. Inspections – Emergencies. The permittee expressly acknowledges and agrees that the city’s officers, officials, staff or other designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the city’s officers, officials, staff or other designee may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the city’s officers, officials, staff or other designee while any such inspection or emergency access occurs.

I. Permittee’s Contact Information. The permittee shall furnish the director with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes without limitation such person’s full name, title, direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times and immediately provide the director with updated contact information in the event that either the responsible person or such person’s contact information changes.

J. Indemnification. The permittee and, if applicable, the owner of the property upon which the wireless facility is installed shall defend, indemnify and hold harmless the city, its agents, officers, officials, employees and volunteers from any and all (1) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, lawsuits, writs and other actions or proceedings (“claims”) brought against the city or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the city’s approval of this permit, and (2) other claims of any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee’s or its agents’, directors’, officers’, employees’, contractors’, subcontractors’, licensees’, or customers’ acts or omissions in connection with this permit or the wireless facility. In the event the city becomes aware of any claims, the city will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the city shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the city’s defense, and the property owner and/or permittee (as applicable) shall promptly reimburse city for any costs and expenses directly and necessarily incurred by the city in the course of the defense. The permittee expressly acknowledges and agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the city to approve this permit, and that such indemnification obligations will survive the expiration or revocation of this permit.

K. Performance Bond. Before the building division issues any construction permit in connection with this permit, the permittee shall post a performance bond from a surety and in a form acceptable to the director in an amount reasonably necessary to cover the cost to remove the improvements and restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which include without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code Section 65964(a), the director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility and restore any areas affected by the removal work to a standard compliant with applicable laws.

L. Recall to Approval Authority – Permit Revocation. The approval authority may recall this permit for review at any time due to complaints about noncompliance with applicable laws or any approval conditions attached to this permit. At a duly noticed public hearing and in accordance with all applicable laws, the approval authority may revoke this permit or amend these conditions as the approval authority deems necessary or appropriate to correct any such noncompliance.

M. Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which include without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee. The permittee may keep electronic records; provided, however, that hard copies kept in the city’s regular files will control over any conflicts between such hard copies and the permittee’s electronic copies, and complete originals will control over all other copies in any form.

N. Permit Renewal. Any application to renew this permit must be tendered to the director within one year prior to the expiration of this permit, and shall be accompanied by all required application materials, fees and deposits for a new application as then in effect. The approval authority shall review an application for permit renewal in accordance with the standards for new facilities as then in effect. The director may, but is not obligated to, grant a written temporary extension on the permit term to allow sufficient time to review a timely submitted permit renewal application. [Ord. 17-11 § 3 (Exh. 1)].

18.205.090 Site location guidelines.

A. Preferred Locations. All applicants must, to the extent feasible, propose new wireless facilities in locations according to the following preferences, ordered from most preferred to least preferred:

1. City-owned or controlled parcels or structures on private property;

2. City-owned or controlled structures in the public rights-of-way;

3. Parcels or structures in business park and industrial districts (OBP, IBP, IMX and HI);

4. Existing structures in the public rights-of-way within business park and industrial districts (OBP, IBP, IMX and HI);

5. Parcels or structures in office and commercial districts (CO, CMX, NC, RC and SC);

6. Existing structures in the public rights-of-way within office and commercial districts (CO, CMX, NC, RC and SC);

7. Parcels or structures in downtown districts (NTS, DP, DMX and WMX);

8. Existing structures in the public rights-of-way within downtown districts (NTS, DP, DMX and WMX);

9. Parcels or structures in public/quasi-public districts (PQP);

10. Existing structures in the public rights-of-way within public/quasi-public districts (PQP).

B. Discouraged Locations. The city discourages new wireless facilities in the following locations, ordered from most discouraged to least discouraged, and the approval authority will take into account whether any less discouraged (or more preferred) locations are technically feasible and potentially available:

1. Parcels or structures in residential districts (RR, RS, RL, RM and RH);

2. Parcels or structures in open space or community land districts (OS, PR, RLC and WRC), except when located on existing electrical transmission towers or other similar utility towers;

3. Any other locations not identified as “preferred” in subsection (A) of this section. [Ord. 17-11 § 3 (Exh. 1)].

18.205.100 Development standards.

A. Generally Applicable Development Standards. All new wireless facilities and substantial changes to existing wireless facilities not covered under Section 6409 must conform to the generally applicable development standards in this subsection (A).

1. Concealment. Wireless facilities must incorporate concealment elements, measures and techniques that blend the equipment and other improvements into the natural and/or built environment in a manner consistent and/or compatible with the uses germane to the underlying zoning district and existing in the immediate vicinity.

2. Overall Height. Wireless facilities may not exceed the applicable height limit for structures in the applicable zoning district.

3. Setbacks. Wireless facilities may not encroach into any applicable setback for structures in the subject zoning district.

4. Noise. Wireless facilities and all accessory equipment and transmission equipment must comply with all noise regulations, which includes without limitation CDC 18.150.130(O) (Noise) and the general plan, and shall not exceed, either individually or cumulatively, the applicable ambient noise limit in the subject zoning district. The approval authority may require the applicant to incorporate appropriate noise-baffling materials and/or strategies whenever necessary to avoid any ambient noise from equipment reasonably likely to exceed the applicable limit.

5. Landscaping. In accordance with Chapters 18.165 (Landscaping) and 18.170 CDC (Water Efficient Landscaping), all wireless facilities proposed to be placed in a landscaped area must include landscape features and a landscape maintenance plan prepared by a California-licensed landscape architect, or other qualified professional. The approval 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 concealment required under this chapter. All landscape features must be planted and maintained using best practice methods. The approval authority may require that all plants proposed or required under this chapter must be native and/or drought-resistant.

6. Site Security Measures. Wireless facilities may incorporate reasonable and appropriate site security measures, such as fences, walls and anti-climbing devices, to prevent unauthorized access, theft or vandalism. Site security measures must be designed to enhance concealment to the maximum extent possible, such as installing equipment within an enclosure designed to mimic a trash-can corral rather than within a chain link fence. The approval authority may require additional concealment elements as the approval authority finds necessary to blend the security measures and other improvements into the natural and/or built environment. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures.

7. Backup Power Sources. The approval authority may approve permanent backup power sources and/or generators on a case-by-case basis. The city strongly disfavors backup power sources mounted on the ground or on poles within the public rights-of-way. The approval authority shall not approve any diesel generators or other similarly noisy or noxious generators in or within 250 feet from any residence; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators.

8. Lights. Wireless facilities may not include exterior lights other than (a) as may be required under FAA, FCC or other applicable governmental regulations; and (b) timed or motion-sensitive lights for security and/or worker safety. 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.

9. 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 city, required by law or recommended under FCC or other United States governmental agencies for compliance with RF emissions regulations.

10. Future Collocations and Equipment. To the extent feasible and aesthetically desirable, all new wireless facilities should be designed and sited in a manner that accommodates future collocations and equipment installations that can be integrated into the proposed wireless facility or its associated structures with no or negligible visual changes to the outward appearance.

11. Utilities. All cables and connectors for telephone, primary electric and other similar utilities must be routed underground to the extent feasible in conduits large enough to accommodate future collocated wireless facilities. Meters, panels, disconnect switches and other associated improvements must be placed in inconspicuous locations to the extent possible. The approval authority shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost.

12. Compliance with Laws. All wireless facilities must be designed and sited in compliance with all applicable federal, state and local laws, regulations, rules, restrictions and conditions, which include without limitation the California Building Standards Code, general plan and any applicable specific plan, the Concord Municipal Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.

B. Development Standards for Specific Types of Wireless Facilities. In addition to the requirements in subsection (A) of this section, all new and substantially changed wireless facilities not covered under Section 6409 must conform to the applicable facility-specific development standards adopted by the city council. The city council shall adopt such standards following a public hearing conducted pursuant to the requirements of the Concord Municipal Code. The facility-specific development standards may include without limitation standards for freestanding facilities, building-mounted facilities and/or facilities located in the public rights-of-way.

C. Design Guidelines. The director may develop and from time to time amend design guidelines, consistent with the generally applicable development standards and any development standards for specific types of wireless facilities, to clarify the aesthetic goals and standards in this chapter for city staff, applicants and the public. Any design guidelines for facilities in the public rights-of-way will be subject to approval by the public works director. In the event that a conflict arises between the development standards adopted under subsections (A) and (B) of this section and the design guidelines adopted under this subsection (C), the development standards adopted under subsections (A) and (B) of this section shall control. [Ord. 17-11 § 3 (Exh. 1)].

18.205.110 Temporary wireless facilities.

A. General Requirements for Temporary Wireless Facilities. Except as provided in subsection (B) of this section, the requirements, procedures and standards in this section shall be applicable to all applications for a temporary use permit for a temporary wireless facility.

1. Applications for Temporary Wireless Facilities. The director shall not approve any temporary wireless facility subject to a temporary use permit except upon a duly filed application consistent with this subsection (A)(1) and any other written application requirements or procedures the director may publish in any publicly stated format. Applicants for a temporary use permit for a temporary wireless facility must submit, at a minimum: (a) a discretionary permit application on the most current form prepared by the planning division; (b) the applicable fee for the application; (c) a site plan that shows the proposed temporary wireless facility and its equipment, physical dimensions and placement on the proposed site relative to property lines and existing structures; (d) an RF compliance report in accordance with CDC 18.205.050(B); and (e) an insurance certificate for general commercial liability that names the city as an additional insured, includes coverage for the time period in which the temporary wireless facility will be placed and carries at least $1,000,000 in coverage per occurrence. Applications must be submitted in person to the director unless the director grants written consent to receive an application by mail or electronic means. No pre-submittal conference or appointment is required for a temporary use permit application for a temporary wireless facility.

2. Administrative Review for Temporary Wireless Facilities. After the director receives a duly filed application for a temporary use permit for a temporary wireless facility, the director shall review the application for completeness. After the director deems the application complete, the director shall review the application for conformance with the required findings in subsection (A)(3) of this section and render a written decision to the applicant. Any denials must include the reasons for the denial. The review shall be administrative in nature and shall not require notice or a public hearing.

3. Required Findings for Temporary Wireless Facilities. The director may approve or conditionally approve a temporary use permit for a temporary wireless facility only when the director finds:

a. The proposed temporary wireless facility will not exceed 50 feet in overall height above ground level;

b. The proposed temporary wireless facility complies with all setback requirements applicable to the proposed location;

c. The proposed temporary wireless facility will not involve any excavation or ground disturbance;

d. The proposed temporary wireless facility will be compliant with all generally applicable public health and safety laws and regulations, which include without limitation maximum permissible exposure limits for human exposure to RF emissions established by the FCC;

e. The proposed temporary wireless facility will not create any nuisance or violate any noise limits applicable to the proposed location;

f. The proposed temporary wireless facility will be identified with a sign that clearly identifies the (i) site operator, (ii) the operator’s site identification name or number and (iii) a working telephone number answered 24 hours per day, seven days per week by a live person who can exert power-down control over the antennas;

g. The proposed wireless temporary wireless facility will be removed within 30 days after the director grants the temporary use permit, or such longer time as the director finds reasonably related to the applicant’s need or purpose for the temporary wireless facility (but in no case longer than one year);

h. The applicant has not been denied an approval for any permanent wireless facility in substantially the same location within the previous 365 days.

4. Appeals for Temporary Wireless Facilities. Any applicant may appeal the director’s written decision to deny an application for a temporary use permit for a temporary wireless facility. The written appeal together with any applicable appeal fee must be tendered to the city within 10 days from the director’s written decision, and must state in plain terms the grounds for reversal and the facts that support those grounds. The zoning administrator shall be the appellate authority for all appeals from the director’s written decision to deny a temporary use permit for a temporary wireless facility. The zoning administrator shall review the application de novo; provided, however, that the zoning administrator’s decision shall be limited to only whether the application should be approved or denied in accordance with the provisions in this chapter and any other applicable laws. The zoning administrator shall issue a written decision that contains the reasons for the decision, and such decision shall be final and not subject to any further administrative appeals.

B. Temporary Wireless Facilities for Emergencies. Temporary wireless facilities may be placed and operated within the city without a temporary use permit only when a duly authorized federal, state, county or city official declares an emergency within a region that includes the city in whole or in part. Any temporary wireless facilities placed pursuant to this subsection (B) must be removed within five days after the date the emergency is lifted. Any person or entity that places temporary wireless facilities pursuant to this section must send a written notice that identifies the site location and person responsible for its operation to the director as soon as reasonably practicable. [Ord. 17-11 § 3 (Exh. 1)].

18.205.120 Amortization of nonconforming wireless facilities.

Any nonconforming wireless facilities in existence at the time this chapter becomes effective must be brought into conformance with this chapter in accordance with the amortization schedule in this section. As used in this section, the “fair market value” will be the construction costs listed on the building permit application for the subject wireless facility and the “minimum years” allowed will be measured from the date on which this chapter becomes effective.

Fair Market Value on Effective Date	Minimum Years Allowed
Less than $50,000	5
$50,000 to $500,000	10
Greater than $500,000	15

The director may grant a written extension to a date certain when the wireless facility owner shows (A) a good faith effort to cure nonconformance; (B) the application of this section would violate applicable laws; or (C) extreme economic hardship would result from strict compliance with the amortization schedule. Any extension must be the minimum time period necessary to avoid such extreme economic hardship. The director may not grant any permanent exemption from this section.

Nothing in this section is intended to limit any permit term to less than 10 years. In the event that the amortization required in this section would reduce the permit term to less than 10 years for any permit granted on or after September 29, 2006, then the minimum years allowed will be automatically extended by the difference between 10 years and the number of years since the city granted such permit. Nothing in this section is intended or may be applied to prohibit any collocation or modification covered under 47 U.S.C. Section 1455(a) on the basis that the subject wireless facility is a legal nonconforming wireless facility. [Ord. 17-11 § 3 (Exh. 1)].

18.205.130 Abandonment or discontinuation – Relocation.

A. Removal Procedures for Abandoned or Discontinued Wireless Facilities.

1. To promote the public health, safety and welfare, the director may declare a facility abandoned or discontinued when:

a. The permittee notifies the director that it abandoned or discontinued the use of a facility for a continuous period of 90 calendar days; or

b. The permittee fails to respond within 30 calendar days to a written notice sent by certified U.S. mail, return receipt requested, from the director that states the basis for the director’s belief that the facility has been abandoned or discontinued for a continuous period of 90 calendar days; or

c. The permit expires in the case where the permittee has failed to file a timely application for renewal.

2. After the director declares a facility abandoned or discontinued, the permittee shall have 90 calendar days from the date of the declaration (or longer time as the director may approve in writing as reasonably necessary) to:

a. Reactivate the use of the abandoned or discontinued facility subject to the provisions of this chapter and all conditions of approval;

b. Transfer its rights to use the facility, subject to the provisions of this chapter and all conditions of approval, to another person or entity that immediately commences use of the abandoned or discontinued facility; or

c. Remove the facility and all improvements installed solely in connection with the facility, and restore the site to a condition compliant with all applicable codes consistent with the then-existing surrounding area.

3. If the permittee fails to act as required in subsection (A)(2) of this section within the prescribed time period, the city council may deem the facility abandoned at a noticed public meeting. The director shall send written notice by certified U.S. mail, return receipt requested, to the last-known permittee or real property owner that provides 30 calendar days (or longer time as the director may approve in writing as reasonably necessary) from the notice date to:

a. Reactivate the use of the abandoned or discontinued facility subject to the provisions of this chapter and all conditions of approval;

c. Remove the facility and all improvements installed solely in connection with the facility, and restore the site to a condition compliant with all applicable codes and consistent with the then-existing surrounding area.

4. If the permittee fails to act as required in subsection (A)(3) of this section within the prescribed time period, the city may remove the abandoned facility, restore the site to a condition compliant with all applicable codes and consistent with the then-existing surrounding area, and repair any and all damages that occurred in connection with such removal and restoration work. The city may, but shall not be obligated to, store the removed facility or any part thereof, and may use, sell or otherwise dispose of it in any manner the city deems appropriate. The last-known permittee or its successor-in-interest and, if on private property, the real property owner shall be jointly liable for all costs incurred by the city in connection with its removal, restoration, repair and storage, and shall promptly reimburse the city upon receipt of a written demand, including any interest on the balance owing at the maximum lawful rate. The city may, but shall not be obligated to, use any financial security required in connection with the granting of the facility permit to recover its costs and interest. Until the costs are paid in full, a lien shall be placed on the facility, all related personal property in connection with the facility and, if applicable, the real private property on which the facility was located for the full amount of all costs for removal, restoration, repair and storage. The city clerk shall cause the lien to be recorded with the county of Contra Costa recorder’s office. Within 60 calendar days after the lien amount is fully satisfied including costs and interest, the city clerk shall cause the lien to be released with the county of Contra Costa recorder’s office.

B. Procedures for Wireless Facilities in the Public Rights-of-Way. In accordance with CMC 12.15.190(d) (Relocation or removal of encroachment), the superintendent of streets may require a permittee, at the permittee’s sole expense, to relocate a facility in the rights-of-way as the city deems necessary to maintain or reconfigure the rights-of-way for other public projects or take any actions necessary to protect public health, safety or welfare. [Ord. 17-11 § 3 (Exh. 1)].