Chapter 12.34
COMMUNICATIONS AND UTILITIES
Sections:
12.34.040 Communication facility permit requirements (discretionary and ministerial).
12.34.050 Application for communication facility permit.
12.34.070 Design and development standards.
12.34.080 Conditions of approval.
12.34.090 Findings for discretionary permits.
12.34.120 Emergency deployment.
12.34.130 Operation and maintenance standards.
12.34.150 No dangerous condition or obstructions allowed.
12.34.170 Cessation of use or abandonment.
12.34.180 Removal and restoration – Permit expiration, revocation or abandonment.
12.34.200 Location and structure preference.
12.34.205 Setback requirements.
12.34.210 Effect on other ordinances.
12.34.220 State or Federal law – Ministerial requirements.
12.34.010 Purpose and intent.
The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, aesthetics, design, operation and maintenance of wireless telecommunications facilities in the City’s public right-of-way. These regulations are intended to establish and enforce aesthetic standards consistent with the City’s authority to do so under Article XI, Section 7 of the California Constitution and Public Utilities Code, Sections 7901 and 7901.1. This chapter is also intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary (A) for the preservation of the public right-of-way in the City for the maximum benefit and use of the public, (B) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the City consistent with the goals, objectives and policies of the General Plan, and (C) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the State and Federal laws, rules and regulations. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.020 Definitions.
Refer to Chapter 17.16 PMC. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.030 Applicability.
(A) Applicability. This chapter applies to the siting, construction or modification of any and all wireless telecommunications facilities proposed to be located in the public right-of-way as follows:
(1) All facilities for which applications were not approved prior to May 6, 2021, shall be subject to and comply with all provisions of this chapter.
(2) All facilities for which applications were approved by the City prior to May 6, 2021, shall not be required to obtain a new or amended permit until such time as a provision of this code so requires. Any communication facility that was lawfully constructed prior to May 6, 2021, that does not comply with the standards, regulations and/or requirements of this chapter shall be deemed a nonconforming use.
(3) All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (PMC 12.34.130, Operation and maintenance standards), cessation of use and abandonment (PMC 12.34.170, Cessation of use or abandonment), removal and restoration (PMC 12.34.180, Removal and restoration – Permit expiration, revocation or abandonment) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (PMC 12.34.150, No dangerous condition or obstructions allowed); provided, however, that if a condition of approval conflicts with a provision of this chapter, the condition of approval shall control until the permit is amended or revoked.
(B) Exclusions. This chapter does not apply to the following:
(1) Amateur radio facilities;
(2) Over the air reception devices (“OTARD”) antennas;
(3) Facilities owned and operated by the City for its use;
(4) Any entity legally entitled to an exemption pursuant to State or Federal law or City-issued franchise agreement. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.040 Communication facility permit requirements (discretionary and ministerial).
(A) General Rule – Major Wireless Telecommunications Facilities Permit Required. All new wireless facilities or collocations or modifications to existing wireless facilities shall require a major wireless telecommunications facilities permit subject to Planning Commission approval unless otherwise provided for in this chapter.
(B) Discretionary Administrative Wireless Telecommunications Facilities Permit.
(1) Discretionary Permit. The Director may issue a discretionary administrative wireless telecommunications facilities permit for new small wireless facilities or collocations or modifications to existing small wireless facilities which meet all the following criteria:
(a) The proposal complies with PMC 12.34.200, Location and structure preference;
(b) The proposal complies with PMC 12.34.205, Setback requirements;
(c) The proposal complies with all applicable provisions in this chapter without need for an exception pursuant to PMC 12.34.190, Exceptions;
(d) The Director makes the findings required by PMC 12.34.090, Findings for discretionary permits; and
(e) The facility would have qualified for a ministerial wireless telecommunications facilities permit but for the design of the facility itself.
(2) Referral to Commission. The Director may, in the Director’s discretion, refer any application for a discretionary administrative wireless telecommunications facilities permit to the Planning Commission for approval, which approval shall be granted if the commission makes the findings required in PMC 12.34.090.
(C) Ministerial Wireless Telecommunications Facilities Permit. Notwithstanding PMC 12.34.220, State or Federal law – Ministerial requirements, the Director shall approve a ministerial wireless telecommunications permit for a small wireless facility if all of the following apply:
(1) The facility will comply with all applicable laws including, but not limited to:
(a) The Americans with Disabilities Act;
(b) All building and safety requirements, including those within the California Building Standards Code, as amended by the City of Palmdale;
(c) All requirements of the Federal Communications Commission (FCC), including requirements relating to radio-frequency (RF) emissions and limits on interference.
(2) The proposed facility is a small wireless facility that will be installed on either:
(a) An existing pole that meets all of the following requirements:
(i) The pole does not support a traffic control device (i.e., stop signs and traffic signals are prohibited); and
(ii) The facility will match the design of the pole to the extent feasible given the weight requirements; and
(iii) If feasible, all equipment installed on the pole will be the same color as the pole; or
(b) A new light pole that meets all of the following requirements:
(i) The pole meets the City’s design requirements for its own light poles;
(ii) The pole is at least 90 feet away from any existing light pole; and
(iii) Unless requested otherwise by the City in writing, the light on the pole will be illuminated, operated, and maintained consistent with the operation of the other light poles in the City, and the full costs of illumination shall be fully borne by the applicant.
(3) The City has issued all required encroachment permits and entered into any required franchise agreement(s).
(4) All accessory equipment is housed in a container which is either (a) installed underground; or (b) attached to the pole such that it does not protrude from the pole by more than 22 inches; is attached more than 10 feet above the ground; and is camouflaged to the extent feasible; or (c) otherwise limits the aesthetic impact of such accessory equipment in a manner approved by the Director.
(5) Antennas must be:
(a) Mounted symmetrically on top of the pole;
(b) No more than four inches wider in diameter than the top of the pole;
(c) The same color as the pole; and
(d) The same shape as the pole (which shape is typically cylindrical).
(6) The small wireless facility complies with PMC 12.34.200 (Location and structure preference).
(7) The small wireless facility complies with PMC 12.34.205 (Setback requirements).
(D) Eligible Facilities Requests. No wireless telecommunications permit is required for any modification of an existing wireless tower or base station for the collocation of new transmission equipment or removal or replacement of existing transmission equipment if such modification does not substantially change the physical dimensions of such tower or base station from the dimensions approved as part of the original discretionary permit for the tower or base station. If, however, any modification to a wireless tower or base station will substantially change the physical dimensions of either the tower or base station, and any other modification to a wireless telecommunications facility that does not qualify as a wireless tower or base station shall obtain any required wireless telecommunications permit. All terms used in this subsection (D) shall have the same meaning as defined in 14 U.S.C. 1455 and any related Federal regulations as they may be amended from time to time.
(1) Other Permits Still Required. Notwithstanding the foregoing, any eligible facilities request must obtain any other required permit(s) (e.g., encroachment permit, building permit). Encroachment permits for any eligible facility shall not be issued unless the applicant provides all application materials required by the Director in addition to the information listed in PMC 12.34.050(B)(1) (“Contact Information”), (2) (“Owner Authorization”), (3) (“Engineering Plans”), and (7) (“Proof of RF Emission Compliance”).
(2) Application. Each request for an exemption submitted under this subsection (D) shall be accompanied by:
(a) Application Form. A complete, duly executed eligible facilities exemption request application on the then-current form prepared by the Director.
(b) Application Fee. The applicable eligible facilities exemption request application fee established by City Council resolution. Batched applications must include the applicable eligible facilities exemption request application fee for each wireless facility in the batch. If no application fee has been established, then the applicant shall provide to the City deposit against which the City will charge its actual and reasonable costs incurred in connection with the application; if the deposit amount is insufficient, applicant shall provide all additional required funds; if the deposit amount is in excess of the City’s actual and reasonable costs, the City shall refund the difference.
(c) Description. A detailed description of the proposed modification to the existing facilities.
(d) Visual Depictions. A photograph, description, and as-built plans of the wireless tower and/or base station as originally constructed, and a photo-simulation, description and construction drawings of the wireless tower and/or base station after modification, showing all relevant dimensions.
(3) Encroachment Permits. Any encroachment permit issued for a facility determined to be an eligible facility under this subsection (D) will be subject to all conditions required by the Director. Additionally, such encroachment permit shall include all standard conditions for wireless telecommunications facilities (see PMC 12.34.080 (Conditions of approval)).
(a) The granting of an eligible facilities request shall not extend the remaining term for the underlying wireless telecommunications facility described in PMC 12.34.160 (Permit expiration).
(b) Notwithstanding PMC 12.34.070(R) (One Year to Build), the encroachment permit build-out period will automatically expire six months after the approval date unless the permittee commences construction within that period, and diligently pursues construction thereafter.
(c) In addition to the ability to revoke the permit pursuant to PMC 12.34.180 (Removal and restoration – Permit expiration, revocation or abandonment), the encroachment permit may be revoked in accordance with its conditions or other provisions of this code applicable to encroachment permits.
(E) Master Deployment Plan Permit.
(1) Notwithstanding any other provision of the municipal code to the contrary, any applicant that seeks approval for five or more wireless telecommunications facilities in the right-of-way (including new facilities and collocations to existing facilities) may elect to submit an application for a master deployment plan permit subject to Planning Commission approval. Any master deployment plan shall expire 36 months after the effective date of the approval unless the Planning Commission establishes a shorter time period. The proposed facilities in a master deployment plan shall be reviewed together at the same time and shall be otherwise subject to the same requirements and procedures applicable to a major communication facility permit. Only facilities in the right-of-way may be covered by a master deployment plan.
(2) A master deployment plan permit shall be deemed an approval for all wireless telecommunications facilities within the plan; provided, however, that an individual encroachment permit shall be required for each communication facility built pursuant to the plan.
(3) Each facility proposed to be constructed pursuant to a master deployment plan permit shall be built in strict compliance with the approved plan. Any deviations or alterations from the approved master deployment plan for an individual communication facility shall be considered as though no master deployment plan permit had been issued and shall require either a major wireless telecommunications facilities permit or an administrative wireless telecommunications facilities permit, as applicable.
(4) An applicant that proposes to amend a master deployment plan permit shall apply to the City and follow the same procedures as would otherwise be required to obtain a new master deployment plan permit.
(F) Other Permits Required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required prior permits or other approvals from other City departments, or State or Federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required prior permits or other approvals from other City departments, State or Federal agencies.
(G) Eligible Applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to State or Federal law, or who have entered into a franchise agreement with the City permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a communication facility or a communication collocation facility in the public right-of-way.
(H) Speculative Equipment Prohibited. The City finds that the practice of “preapproving” wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public’s best interest. The City shall not approve any equipment or other improvements in connection with a communication facility permit when the applicant does not actually and presently intend to install such equipment or construct such improvements. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.050 Application for communication facility permit.
(A) Application.
(1) In addition to the information required of an applicant for an encroachment permit or any other permit required by this code, each applicant requesting approval of the installation or modification of a communication facility in the public right-of-way shall fully and completely submit to the City a written application on a form prepared by the Director.
(2) No applicant seeking to install wireless antennas shall seek an encroachment permit for fiber or coaxial cable only. Applicants shall simultaneously request fiber installation or other cable installation when seeking to install antennas in the right-of-way.
(B) Application Contents – All Permits. The Director shall develop an application form and make it available to applicants upon request. The supplemental application form for any new communication facility installation in the public right-of-way (regardless of whether it is ministerial or discretionary) shall require the following information, in addition to any information required by subsection (C) of this section (for discretionary permits) and all other information determined necessary by the Director:
(1) Contact Information. The name, address, email address, and telephone number of the applicant, owner and the operator of the proposed facility, and the date the application was received by the City.
(2) Owner Authorization. If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner’s property.
(3) Engineering Plans. Detailed engineering plans of the proposed facility and related report prepared by a professional engineer registered in the State documenting the following:
(a) Height, diameter and design of the facility, including technical engineering specifications, economic and other pertinent factors governing selection of the proposed design, together with evidence that demonstrates that the proposed facility has been designed to be the least visible equipment within the particular technology the carrier chooses to deploy. A layout plan, section and elevation of the tower structure shall be included.
(b) A photograph and model name and number of each piece of equipment included.
(c) Power output and operating frequency for the proposed antenna.
(d) Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges which can be accommodated.
(e) Sufficient evidence of the structural integrity of the pole or other supporting structure as required by the City.
(4) Justification for Facility. Unless the Director waives the requirement, a study which provides all relevant evidence of whether a denial of the proposed facility would materially inhibit the applicant’s provision of personal wireless services in violation of Federal law.
(5) Environmental. A completed environmental assessment application.
(6) Request for Exception. If the applicant requests an exception to the requirements of this chapter (in accordance with PMC 12.34.190, Exceptions), the applicant shall provide all information and studies necessary for the City to evaluate that request.
(7) Proof of RF Emission Compliance. For a facility that is not categorically excluded under the FCC regulations for RF emissions, the applicant shall submit an RF exposure compliance report prepared and certified by an RF engineer acceptable to the City that certifies that the proposed facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable Federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts effective radio power “ERP”) for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site.
(8) FAA Documents. Copies of any documents that the applicant is required to file pursuant to Federal Aviation Administration regulations for the facility.
(9) Fee. An application fee, and a deposit for a consultant’s review as set forth in subsection (F) of this section in an amount set by resolution by the City Council and in accordance with applicable law (e.g., California Government Code Section 50030).
(10) RF Exposure Checklist. Completion of the radio frequency (RF) emissions exposure guidelines checklist contained in Appendix A to the Federal Communications Commission’s (FCC) “Local Government Official’s Guide to Transmitting Antenna RF Emission Safety,” as it may be amended from time to time, to determine whether the facility will be “categorically excluded” as that term is used by the FCC.
(11) Site Plans. Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, pole diameter, antennas, accessory equipment, access or utility easements, landscaped areas, existing utilities, adjacent land uses, and showing compliance with PMC 12.34.070, Design and development standards.
(12) Traffic Control. If an encroachment permit is required, then the encroachment permit procedures shall control whether (or not) a traffic control plan is required. If no encroachment permit is required, then a traffic control plan is required if either (a) the proposed installation is on any street in a nonresidential zone or (b) the applicant seeks to use large equipment (e.g., crane) and the Director decides to require a traffic control plan.
(13) Other Information. Any other information and/or studies determined necessary by the Director may be required.
(C) Additional Application Contents – Discretionary Permits. In addition to providing all materials required in subsection (B) of this section, applications for discretionary permits shall also provide the following:
(1) Owner Authorization. If the applicant is an agent, the applicant shall provide a duly executed letter of authorization from the owner of the facility. If the owner will not directly provide wireless telecommunications services, the applicant shall provide a duly executed letter of authorization from the person(s) or entity(ies) that will provide those services.
(2) Written Description. A full written description of the proposed facility and its purpose.
(3) Mock-Up and Sign. Proof that a temporary mock-up of the facility and sign have been installed at the proposed location for a period of at least 30 calendar days which facility roughly replicates for the public the proposed height and bulk of the proposed structure. If the Director finds the applicant’s cost of complying with this requirement would greatly outweigh the value of such compliance, then the Director may waive the requirement that the applicant install the mock-up (but not the installation of the sign, which still requires an encroachment permit).
(a) Applicant shall obtain an encroachment permit before installing a temporary mock-up and a sign, and must remove the temporary mock-up and sign within five calendar days of receiving a written notice to remove from the Director.
(b) The mock-up and sign shall demonstrate the height and mass of the facility, including all interconnecting cables. The applicant shall not be entitled to install the facility it intends to install permanently. The mock-up may consist of story poles or the like.
(c) The mock-up shall be accompanied by a sign that displays photo simulations depicting before and after images, including any accessory equipment cabinet, and the telephone number of the Public Works Department.
(d) The applicant shall be required to follow any other City practices or processes relevant to the installation of a mock-up and sign as may be provided in a publicly accessible form or document.
(e) After installation of the mock-up, the applicant shall certify that the mock-up accurately represents the height and width of the proposed installation and has been installed consistent with this code.
(4) Elevations. Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping, and camouflage.
(5) Noise Study. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed communication facility will comply with this code, including PMC 12.34.070(O)(2). The Director may waive the requirement for a noise study if the Director finds the cost of creating the study would greatly outweigh the value of receipt of such study.
(6) Propagation Maps. Upon written request of the applicant, the Director at his or her discretion may waive some or all of the following: a written description identifying the geographic service area for the subject installation including geographic and propagation maps, that identifies the location of the proposed facility in relation to all existing and planned facilities maintained within the City by each of the applicant, operator, and owner, if different entities, as well as the estimated number of potentially affected uses in the geographic service area. Regardless of whether a master deployment plan permit is sought, the applicant shall depict all locations anticipated for new construction and/or modifications to existing facilities, including collocation, within two years of submittal of the application. Longer range conceptual plans for a period of five years shall also be provided, if available.
(a) In the event the applicant seeks to install a communication facility to address service coverage concerns, full-color signal propagation maps with objective units of signal strength measurement that show the applicant’s current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites.
(b) If applicant seeks to address service capacity concerns, a written explanation identifying the existing facilities with service capacity issues together with competent evidence to demonstrate the inability of those facilities to meet capacity demands.
(7) CPCN. Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN.
(8) Visual Depiction. Accurate visual impact analysis showing the maximum silhouette, color and finish palette and proposed camouflage for the facility, including scaled photo simulations from at least three different angles.
(D) Application Contents – Modification of Existing Facility. The content of the application form for a modification to an existing facility shall be determined by the Director, and shall include but not be limited to the requirements listed in subsections (B) and (C) of this section unless prohibited by State or Federal law.
(E) Effect of State or Federal Law Change. If a subsequent State or Federal law prohibits the collection of any information required by subsection (B) or (C) of this section, the Director is authorized to omit, modify or add to that request from the City’s application form with the written approval of the City Attorney, which approval shall be a public record.
(F) Independent Expert. The Director is authorized to retain on behalf of the City an independent, qualified consultant to review any application for a permit for a communication facility. The review is intended to be a review of technical aspects of the proposed communication facility and shall address any or all of the following:
(1) Compliance with applicable radio frequency emission standards;
(2) Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so;
(3) The accuracy and completeness of submissions;
(4) Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis;
(5) The applicability of analysis techniques and methodologies;
(6) The validity of conclusions reached or claims made by applicant;
(7) The viability of alternative sites and alternative designs; and
(8) Any other specific technical issues identified by the consultant or designated by the City.
The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the City for the consultant’s cost. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.060 Review procedure.
(A) Presubmittal Conference. Prior to application submittal, the City strongly encourages all applicants to schedule and attend a presubmittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and application materials. The presubmittal conference is intended to identify potential concerns and streamline the formal application review process after submittal. Public Works Department staff will endeavor to provide applicants with an appointment within approximately five business days after receipt of a written request.
(B) Application Submittal Appointment. All applications must be submitted to the City at a prescheduled appointment. Applicants may submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible as determined by the City. City staff will endeavor to provide applicants with an appointment within five business days after receipt of a written request.
(C) Notice and Decisions. The provisions in this section describe the procedures for approval and any required notice and public hearings for an application.
(1) When Hearings Required.
(a) Discretionary Decisions. Any permit application under this chapter subject to Planning Commission or the Director’s discretionary approval requires notice and a public hearing in accordance with PMC 17.20.020, Notification procedures.
(b) Ministerial Decisions. The Director may approve or conditionally approve an application for a ministerial application without a public hearing and without issuing prior notice of the decision. For denials see subsection (C)(3) of this section.
(2) Notice of Decisions.
(a) Planning Commission Decision of Approval. The Planning Commission may approve, or conditionally approve, an application only after the commission makes the findings required in PMC 12.34.090, Findings for discretionary permits.
(b) Administrative Approvals. The Director may approve, or conditionally approve, an application only after it makes the findings required in PMC 12.34.090, Findings for discretionary permits. Within five days after the Director approves an application under this chapter, the Director is directed to place notice of the decision in the U.S. mail, consistent with PMC 17.20.090(C), Effective Date of Land Use Decisions.
(3) Denials.
(a) All final decisions made pursuant to this chapter shall be in writing and based on substantial evidence in the written administrative record. The written decision shall include the reasons for the decision.
(b) Administrative Denials. If the Director determines that any application submitted for a ministerial or discretionary administrative wireless telecommunications facilities permit does not meet code requirements, the Director shall notify the applicant of said finding in writing, and the application shall be denied effective on the date of issuance of said notice, unless, within 10 days of the issuance of the written notice, the applicant requests the application be converted to an application for a major wireless facilities permit application. The Planning Commission shall thereafter hear the application only after a complete application for the major wireless permit has been submitted.
(4) Notice of Shot Clock Expiration.
(a) Notification by Applicant. The City acknowledges there are Federal and State shot clocks which may be applicable to a proposed communication facility. That is, Federal and State law provides time periods in which the City must approve or deny a proposed communication facility. As such, the applicant is required to provide the City written notice of the expiration of any shot clock, which the applicant shall ensure is received by the City (e.g., overnight mail) no later than 20 days prior to the expiration, and until the applicant has provided such notice, the City shall be entitled to conclude that the applicant has consented to the delay, and that the delay is reasonable.
(b) Tolling Agreements. The Director is authorized to enter into an agreement to toll the relevant shot clock requirements, if the form of the agreement meets the approval of the City Attorney.
(D) Appeals. Any aggrieved person or entity may appeal a decision by the Director or the Planning Commission as provided in accordance with the provisions in PMC 17.20.010 et seq. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.070 Design and development standards.
All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following:
(A) General Guidelines.
(1) The applicant shall employ stealthing/camouflage design techniques in the design and placement of wireless telecommunications facilities to prevent the facility from dominating the surroundings.
(2) To the maximum extent feasible, stealthing/camouflage designs shall be used in an effort to eliminate the need to screen such facilities such that landscaping would need to be removed. If screening is nevertheless required, the screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility’s visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality.
(3) To the extent feasible, facilities shall be located such that views from a residential structure are not significantly impaired.
(B) Traffic Safety. All facilities shall be designed and located in such a manner to avoid adverse impacts on traffic safety. Among other things, when determining traffic safety impacts, the City will consider the views of the Manual for Uniform Traffic Control Devices (MUTCD) and whether the proposed installation location is high enough and far enough away from the street to minimize the risk of high profile vehicles colliding with the installation.
(C) Blending Methods. All facilities shall have subdued colors and nonreflective materials that blend with the materials and colors of the surrounding area and structures.
(D) Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush-mounted, to the extent feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible.
(E) Poles.
(1) Facilities shall be located consistent with PMC 12.34.200, Location and structure preference, unless an exception pursuant to PMC 12.34.190, Exceptions, is granted.
(2) Only pole-mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited. (For exceptions see subsection (E)(8) of this section, PMC 12.34.190, Exceptions, and 12.34.220, State or Federal law – Ministerial requirements.)
(3) Utility Poles. The maximum height of any antenna shall not exceed 72 inches above the height of any electricity supply lines on a utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than 18 feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as may be revised or superseded.
(4) Light Poles. The maximum height of any antenna shall not exceed six feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be on the pole, and not on any mast arm.
(5) Replacement Poles. If an applicant proposes to replace a pole in order to accommodate a proposed facility, the pole shall be designed to resemble the appearance and dimensions of existing poles near the proposed location, including size, height, color, materials and style, to the maximum extent feasible.
(6) Pole-mounted equipment, exclusive of antennas, shall be restricted to the smallest possible dimensions and shall not exceed six cubic feet in dimension.
(7) Reserved.
(8) An exception, pursuant to PMC 12.34.190, shall be required to place a new pole in the public right-of-way. No permit for a new pole shall be granted unless other alternatives are infeasible. If an exception is granted for placement of new poles in the right-of-way:
(a) Appearance. Such new poles shall be designed to resemble existing poles in the right-of-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced.
(b) Ninety Feet. Such new poles that are not replacement poles shall be located at least 90 feet from any existing pole to the extent feasible.
(c) Analysis. A new pole justification analysis shall be submitted to demonstrate why other preferred methods are infeasible including a demonstration that the new pole is designed to be the minimum functional height and width required to support the proposed facility.
(9) All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible. For all wooden poles wherein interior installation is infeasible, conduit and cables attached to the exterior of poles shall be mounted flush thereto and painted to match the pole.
(F) Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible.
(G) Wind Loads. Each facility shall be properly engineered to withstand wind loads as required by this code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility.
(H) Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, incommode the public’s use of the right-of-way, or safety hazards to pedestrians and motorists so as not to obstruct the intersection sight distance.
(I) Public Facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility.
(J) Screening. All ground-mounted facility, pole-mounted equipment, or walls, fences, landscaping or other screening methods shall be installed at least 18 inches from the curb and gutter flow line.
(K) Accessory Equipment.
(1) In general, all accessory equipment (except meters) shall be located underground or be pole mounted.
(2) In general, meters shall be a part of the wireless facility or be placed within the landscaped portion of the right-of-way.
(3) When the requirements of subsections (K)(1) and (2) of this section are technically infeasible, such accessory equipment shall be enclosed within a structure which shall not exceed a height of five feet and a total footprint of 15 square feet. Such structure shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening.
(4) In locations where homes are only along one side of a street, above-ground accessory equipment shall not be installed directly in front of a residence. Such above-ground accessory equipment shall be installed along the side of the street with no homes facing it.
(L) Landscaping. Where appropriate, each facility shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs. Additional landscaping shall be planted, irrigated and maintained by applicant where such landscaping is deemed necessary by the City to provide screening or to conceal the facility.
(M) Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the City.
(N) Lighting.
(1) No facility may be illuminated unless specifically required by the Federal Aviation Administration or other government agency. Beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency.
(2) Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers and monopoles.
(3) Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding neighborhoods.
(4) Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion-sensitive light controllers and lights, and must install such lights so as to avoid illumination impacts to adjacent properties to the maximum extent feasible. The City may, in its discretion, exempt an applicant from the foregoing requirement when the applicant demonstrates a substantial public safety need.
(5) The applicant shall submit a lighting study which shall be prepared by a qualified lighting professional to evaluate potential impacts to adjacent properties. Should no lighting be proposed, no lighting study shall be required.
(6) Nothing in this subsection (N) is intended to prevent the installation of wireless facilities camouflaged on or within light poles if the light poles meet the City’s design requirements for its own light poles.
(O) Noise.
(1) Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 p.m. and 7:00 a.m.
(2) At no time shall equipment noise from any facility exceed an exterior noise level of 55 dBA three feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within 500 feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed 45 dBA three feet from the source of the noise.
(P) Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The Director may require the provision of warning signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device.
(Q) Modification. Consistent with current State and Federal laws and if permissible under the same, at the time of modification of a communication facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities.
(R) One Year to Build. The installation and construction approved by a communication facility permit shall begin within one year after its approval or it will expire without further action by the City. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.080 Conditions of approval.
In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any modification of these conditions or additional conditions of approval deemed necessary by the approving party:
(A) As-Built Drawings. The permittee shall submit an as-built drawing within 90 days after installation of the facility. As-builts shall be in an electronic format acceptable to the City which can be linked to the City’s GIS.
(B) Contact Information. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the City. The permittee shall notify the City of any changes to the information submitted within 30 days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following:
(1) Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility.
(2) The legal status of the owner of the communication facility.
(C) Assignment. The permittee shall notify the City in writing within 10 days after transfer or assignment of the permit. The written notice must include: (1) the transferee’s legal name; (2) the transferee’s full contact information, including a primary contact person, mailing address, telephone number and email address; and (3) a statement signed by the transferee that the transferee shall accept all permit terms and conditions. The Director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all its conditions of approval, if any. Such materials or documentation may include, but shall not be limited to: Federal, State and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as-built drawings; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission.
(D) Signs. At all times, all required notices and/or signs shall be posted on the site as required by the Federal Communications Commission, California Public Utilities Commission, any applicable licenses or laws, and as approved by the City. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans.
(E) Security. Permittee shall pay for and provide a performance bond or other form of security approved by the City Attorney’s office, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee’s obligations under these conditions of approval and this code. The security instrument coverage shall include, but not be limited to, removal of the facility. (The amount of the security instrument shall be calculated by the applicant in its submittal documents in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said security instrument.
(F) Noise Complaints. If a nearby property owner or occupant registers a noise complaint and City forwards the same to the permittee (personally identifiable information may be redacted), the permittee shall have 10 business days to file a written response regarding the complaint which includes any applicable remedial measures. If the City determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the City may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the Director. If the Director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the code, the Director may impose conditions on the project to achieve said objective.
(G) Permit Expiration. A condition setting forth the permit expiration date in accordance with PMC 12.34.160, Permit expiration, shall be included in the conditions of approval.
(H) Additional Conditions. The communication facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the Director for the purpose of: (1) protecting the public health, safety, and welfare; (2) preventing interference with pedestrian and vehicular traffic; and/or (3) preventing damage to the public right-of-way or any adjacent property. The City may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the underlying permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the City by the permittee.
(I) No Permit Transfer. The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by subsection (E) of this section (Security).
(J) Property Rights. The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property. No structure, improvement or property owned by the City shall be moved to accommodate a communication facility unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the City’s structure, improvement or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right-of-way, the permittee shall provide the City with documentation establishing to the City’s satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement or property within the public right-of-way to be affected by applicant’s facilities.
(K) Liability. The permittee shall assume full liability for damage or injury caused to any property or person by the facility.
(L) Repair Obligations. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to City streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility lines and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation, use, and/or maintenance of a communication facility in the public right-of-way. The permittee shall, at a minimum, restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the City Engineer shall cause such repair to be completed at permittee’s sole cost and expense.
(M) Drip Line. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way.
(N) Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of $2,000,000 for each occurrence and $5,000,000 in the aggregate, that fully protects the City from claims and suits for bodily injury and property damage. The insurance must name the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least A:VII in the latest edition of A.M. Best’s Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with 30 days’ prior written notice to the City, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the City, and any insurance or self-insurance maintained by the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, employees and volunteers shall be excess of permittee’s insurance and shall not contribute with it. The policies of insurance required by the permit shall include provisions for waiver of subrogation. In accepting the benefits of the permit, permittee hereby waives all rights of subrogation against the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, employees and volunteers. The insurance must afford coverage for the permittee’s and the wireless provider’s use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the City’s Risk Manager. Before issuance of any building permit for the facility, the permittee shall furnish the City Risk Manager certificates of insurance and endorsements, in the form satisfactory to the City Attorney or the Risk Manager, evidencing the coverage required by the City.
(O) Indemnification. To the fullest extent permitted by law, permittee and any contractors or subcontractors working on its behalf agree to indemnify the City of Palmdale, its officers, employees, agents and elected and appointed boards (hereinafter “City indemnitees”) for any loss, claim, demand, cause of action, cost, expense, damage, obligation or liability which arises out of or is in any way connected with the installation, use, and maintenance of the communication facility, including any acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of permittee, its contractors or subcontractors, except to the extent directly caused by the gross negligence or willful misconduct of any person or entity indemnified hereunder. At their own expense, permittee and, as applicable, any contractors or subcontractors working on its behalf, shall defend any suit, claim or action against the City indemnitees founded upon such loss, claim, demand, cause of action, cost, expense, damage, obligation or liability. Permittee shall ensure that the contract of any contractor or subcontractor working under the permit contains an indemnity agreement, requiring the contractor or subcontractor to indemnify and defend the City indemnitees pursuant to the terms set forth above. Permittee shall indemnify the City indemnitees, and save them harmless from any and all loss, damage, costs, expenses and attorney’s fees suffered or incurred on account of any breach of the aforesaid obligations and covenants, and any other provision or covenant of this section.
(P) Hold Harmless. Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney’s fees, interest and expert witness fees), or damages claimed by third parties against the City for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or in any way related to the communication facility, or to any work done by or use of the public right-of-way by the permittee, owner or operator of the communication facility, or their agents, excepting only liability to the extent directly caused by gross negligence or willful misconduct of the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers.
(Q) Cabinet Removal. Should the utility company servicing the facility with electrical service not require the use of an above-ground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within 90 days of such service being offered and reasonably restore the area to its prior condition. An extension may be granted if circumstances arise outside of the control of the permittee.
(R) Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to City, if and when made necessary by (1) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or above-ground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by City or any other public agency, (2) any abandonment of any street, sidewalk or other public facility, (3) any change of grade, alignment or width of any street, sidewalk or other public facility, or (4) a determination by the Director that the communication facility has become incompatible with public health, safety or welfare or the public’s use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within 90 days of notification by City unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a modified permit pursuant to the code including applicable notice and hearing procedures. The permittee shall be entitled, on permittee’s election, to either a pro rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the code allow. If the facility is not modified, removed, or relocated within said period of time, City may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances including those of immediate or imminent threat to the public’s health and safety, the City may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter.
(S) Written Approval of Conditions. Permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the communication facility permit within 30 days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the City within said 30-day period.
(T) Right-of-Way Agreement. Prior to the issuance of any encroachment permit, permittee may be required to enter into a right-of-way agreement with the City in accordance with the City’s past practice.
(U) “Permittee” shall have the meaning of owner(s) or lessee(s) of property or their agent(s), or person(s) who have contracted to purchase property contingent upon their ability to acquire the necessary permits under this chapter, or the agent(s) of such persons who have been issued a permit and all successors in interest. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.090 Findings for discretionary permits.
No discretionary permit shall be granted for a communication facility unless the approving party makes all of the following findings:
(A) The proposed facility has been designed and located in compliance with all applicable provisions of the municipal code, including this chapter.
(B) The proposed location for the facility is reasonable when considering both (1) the Federal mandate to not regulate personal wireless service facilities in a manner that would “prohibit or have the effect of prohibiting the provision of personal wireless services”; and (2) the City’s legitimate related policy objectives relating to the location of wireless facilities.
(C) The proposed facility is substantially compatible with existing or planned developments and uses in the same general area and would not be substantially detrimental to existing or planned developments or uses within the general area.
(D) The proposed facility will not be materially detrimental to the health, safety and general welfare of the public (excluding any environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communication Commission’s regulations concerning such emissions).
(E) All antennas, poles, equipment, and other structures erected to support antennas are visually compatible with their surroundings. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.100 Reserved.
(Ord. 1603 § 4 (Exh. IB), 2023)
12.34.110 Nonexclusive grant.
No permit or approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the City for any purpose whatsoever. Further, no approval shall be construed as any warranty of title. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.120 Emergency deployment.
A COW shall be permitted for the duration of an emergency declared by the City or at the discretion of the Director. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.130 Operation and maintenance standards.
All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards:
(A) Repairs. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within 48 hours:
(1) After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or
(2) After permittee, owner, operator or any designated maintenance agent receives notification from the City.
(B) Contact Information. Each permittee of a communication facility shall provide the Director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility (“contact information”). Contact information shall be updated within seven days of any change.
(C) Good Condition. All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of:
(1) General dirt and grease;
(2) Chipped, faded, peeling, and cracked paint;
(3) Rust and corrosion;
(4) Cracks, dents, and discoloration;
(5) Missing, discolored or damaged artificial foliage or other camouflage;
(6) Graffiti, bills, stickers, advertisements, litter and debris;
(7) Broken and misshapen structural parts; and
(8) Any damage from any cause.
(D) Landscaping. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the Director.
(E) Replacement. The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation.
(F) Routine Inspections. Each facility shall be operated and maintained to comply with all conditions of approval. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the same and the standards set forth in this chapter. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.140 Reserved.
(Ord. 1603 § 4 (Exh. IB), 2023)
12.34.150 No dangerous condition or obstructions allowed.
No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.160 Permit expiration.
(A) Ten Year Expiration. Unless Government Code Section 65964, as it may be amended, authorizes the City to issue a permit with a shorter term, a permit for any communication facility shall be valid for a period of 10 years, unless pursuant to another provision of this code it lapses sooner or is revoked. At the end of 10 years from the date of issuance, such permit shall automatically expire.
(B) Renewal. A permittee may apply for a new permit within 180 days prior to expiration. Said application and proposal shall comply with the City’s current code requirements for wireless telecommunications facilities. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.170 Cessation of use or abandonment.
(A) Abandonment. A communication facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for 90 or more consecutive days unless the permittee has obtained prior written approval from the Director which shall not be unreasonably denied. If there are two or more users of a single facility, then this provision shall not become effective until all users cease using the facility.
(B) Notice of Abandonment. The operator of a facility shall notify the City in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within 10 days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the Director of any discontinuation of operations of 30 days or more.
(C) Remedies. Failure to inform the Director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for:
(1) Litigation;
(2) Revocation or modification of the permit;
(3) Acting on any bond or other assurance required by this chapter or conditions of approval of the permit;
(4) Removal of the facilities by the City in accordance with the procedures established under this code for abatement of a public nuisance at the owner’s expense; and/or
(5) Any other remedies permitted under this code. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.180 Removal and restoration – Permit expiration, revocation or abandonment.
(A) Removal at Permit Termination. Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its communication facility and restore the site to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the City. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the City. The facility shall be removed from the property, at no cost or expense to the City.
(B) Failure to Remove. Failure of the permittee, owner or operator to promptly remove its facility and restore the property within 90 days after expiration, earlier termination or revocation of the permit, or abandonment of the facility, shall be a violation of this code. Upon a showing of good cause, an extension may be granted by the Director where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for:
(1) Prosecution;
(2) Acting on any security instrument required by this chapter or conditions of approval of permit;
(3) Removal of the facilities by the City in accordance with the procedures established under this code for abatement of a public nuisance at the owner’s expense; and/or
(4) Any other remedies permitted under this code.
(C) Summary Removal. If the Director or City Engineer determines that the condition or placement of a communication facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-of-way, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, “exigent circumstances”), the Director or City Engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five business days of removal and all property removed shall be preserved for the owner’s pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick up the property within 60 days, the facility shall be treated as abandoned property.
(D) Removal of Facilities by City. If the City removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the City for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the City may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this code. Unless otherwise provided herein, the City has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the City destroys any such facility not timely removed by the permittee, owner or operator after notice, or removed by the City due to exigent circumstances. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.190 Exceptions.
(A) Federal Law – Planning Commission Exception. The City Council recognizes that Federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services. The City Council finds that, due to wide variation among wireless facilities, technical service objectives and changed circumstances over time, it is appropriate to allow a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. The City Council further finds that circumstances in which an effective prohibition may occur are extremely difficult to discern, and that specified findings to guide the analysis promote clarity and the City’s legitimate interest in well-planned wireless facilities deployment. Therefore, if any applicant demonstrates that strict compliance with any provision in this chapter, as applied to a specific proposed personal wireless services facility, would effectively prohibit the provision of personal wireless services, the Planning Commission may grant a limited, one-time exemption from strict compliance with the requirements of this code subject to the provisions in this section.
(B) Required Findings. The Planning Commission shall not grant any exception unless the applicant demonstrates by a preponderance of the evidence all the following:
(1) The applicant has provided the City with a clearly defined technical service objective and a clearly defined potential site search area;
(2) The applicant has provided the City with a meaningful comparative analysis that includes the factual reasons why denial of the application would materially inhibit the deployment of personal wireless services. Such analysis shall include analysis of any alternative location(s) or design(s) suggested by the City or otherwise identified in the administrative record, including but not limited to potential alternatives identified at any public meeting or hearing, and an indication of whether such alternatives are technically feasible; and
(3) The applicant has provided the City with a meaningful comparative analysis that includes the factual reasons why the proposed location and design deviations are the least noncompliant location and design necessary to reasonably achieve the applicant’s reasonable technical service objectives.
(C) Scope. The Planning Commission shall limit its exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The Planning Commission may adopt conditions of approval as reasonably necessary to promote the purposes in this chapter and protect the public health, safety and welfare.
(D) Independent Consultant. The City shall have the right to hire, at the applicant’s expense, an independent consultant to evaluate issues raised by the exception and to submit recommendations and evidence in response to the application. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.200 Location and structure preference.
Compliance with this section will occur if the applicant has demonstrated that each more-preferred location and structure within 500 feet of the proposed installation is “technically infeasible” as the term is defined in PMC 17.16.200(T). If there is conflict between obtaining a higher priority in subsection (A) (Location Preference Hierarchy) versus subsection (B) (Support Structure Hierarchy) of this section, satisfying the location preferences in subsection (A) (Location Preference Hierarchy) of this section shall be preferred. The Director shall not consider claims of an “effective prohibition” when making this determination of whether a structure or location is “feasible.”
(A) Location Preference Hierarchy. The following are the City’s preferences for locations for small wireless facilities in the public rights-of-way, ordered from most preferred to least preferred:
(1) Nonresidential Districts.
(a) Locations within, or immediately adjacent to, zones where residential uses are not permitted uses (e.g., industrial, commercial and industrial districts with no residential overlay) on or along freeways, expressways, and arterials;
(b) Locations within, or immediately adjacent to, zones where residential uses are not permitted on or along collector streets; or
(c) Locations within, or immediately adjacent to, zones where residential uses are not permitted uses on or along local streets.
(2) Residential Overlay Districts.
(a) Locations within, or immediately adjacent to, zones where residential uses would be prohibited but for an overlay district, on or along freeways, expressways and arterials;
(b) Locations within, or immediately adjacent to, zones where residential uses would be prohibited but for an overlay district, on or along collector streets; or
(c) Locations within, or immediately adjacent to, zones where residential uses would be prohibited but for an overlay district, on or along local streets.
(3) Residential Districts and Schools.
(a) Locations (i) within, or immediately adjacent to, zones where residential uses are permitted uses on or along major, primary or secondary arterials and (ii) within or immediately adjacent to primary or secondary schools which are located on or along freeways, expressways and arterials;
(b) Locations (i) within, or immediately adjacent to, zones where residential uses are permitted uses on or along divided collector arterials or collector arterials and (ii) within or immediately adjacent to primary or secondary schools which are located on or along collector streets; or
(c) Locations (i) within, or immediately adjacent to, zones where residential uses are permitted uses on or along local streets and (ii) within or immediately adjacent to a primary or secondary school located on or along local streets.
(B) Support Structure Hierarchy. The following are the City’s preferences for support structures for small wireless facilities in the public rights-of-way, ordered from most preferred to least preferred:
(1) New replacement light standards (i.e., removing a light standard entirely and replacing it with a new light standard);
(2) Existing light standards;
(3) Existing or new replacement third party utility poles;
(4) Existing or new replacement City traffic signal poles;
(5) New camouflaged standalone poles;
(6) Any other types of poles the Director determines meet the purposes of this chapter. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.205 Setback requirements.
Wireless facilities shall meet the following requirements:
(A) Setback from Dwellings. Small wireless facilities, regardless of zone, shall not be within 15 feet of any lawful dwelling unit.
(B) Sight Distance Triangles. New or new replacement poles (excluding street traffic signal poles) shall not be placed within any sight distance triangles at any intersections.
(C) Setbacks from Driveways. New or new replacement poles, regardless of zone, must be placed at least 10 feet away from any driveway, and at least 50 feet from any driveways for K-12 schools, police stations, fire stations or other public or private emergency responder facilities.
(D) Near Property Lines. New or new replacement poles, regardless of zone, shall be placed as close as feasible and in no event more than five feet of a property line between two parcels that abut the public right-of-way.
(E) Historic Structures or Public Art. New poles (including replacement poles) shall not be installed within 100 feet of designated historic structures or local landmarks or public art.
(F) Facility Distance. Facilities of the same company shall not be located within 500 feet of each other. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.210 Effect on other ordinances.
Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this code. In the event of a conflict between any provision of this chapter and other sections of this code, this chapter shall control. (Ord. 1603 § 4 (Exh. IB), 2023)
12.34.220 State or Federal law – Ministerial requirements.
(A) Ministerial Permitting.
(1) If it is determined by the City Attorney that the municipal code requires a discretionary permit, but State or Federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, such requirement shall be deemed severable and all remaining regulations shall remain in full force and effect. Such a determination by the City Attorney shall be in writing with citations to legal authority and shall be a public record. For those facilities, in lieu of a site plan review or a conditional use permit, a ministerial administrative permit shall be required prior to installation or modification of a communication facility, and all provisions of this chapter that would otherwise apply to the discretionary permit shall be applicable to any such facility with the exception that the required permit shall be reviewed and administered as a ministerial permit by the Director rather than as a discretionary permit. Any conditions of approval set forth in this provision or deemed necessary by the Director shall be imposed and administered as reasonable time, place and manner rules.
(2) Notwithstanding subsection (A)(1) of this section, the determination that would otherwise be made by the City Attorney may be made by the Director if the Director’s determination is made upon a form approved by the City Attorney which form is designed to ensure compliance with the requirements of subsection (A)(1) of this section.
(B) Changed Law. If, subsequent to the issuance of the written determination pursuant to subsection (A) of this section, and before the issuance of a wireless telecommunications permit, the City Attorney determines that the law has changed and that discretionary permitting is permissible, the City Attorney shall issue such determination in writing with citations to legal authority and all discretionary permitting requirements shall be reinstated. The City Attorney’s written determination shall be a public record.
(C) Enforceable Laws. All installations permitted pursuant to this chapter shall comply with all Federal and State laws including but not limited to the Americans with Disabilities Act and the California Building Standards Code. (Ord. 1603 § 4 (Exh. IB), 2023)