Chapter 17.62
SPECIAL NONRESIDENTIAL USES
Sections:
17.62.010 Adult-oriented businesses.
17.62.020 Alcoholic beverage sales.
17.62.050 Check cashing businesses and payday loan businesses.
17.62.060 Cottage food operation.
17.62.090 Healthy food stores.
17.62.100 Internet gaming devices.
17.62.120 Massage establishments and escort services.
17.62.130 Cannabis facilities, delivery and cultivation.
17.62.150 Pawnshops or pawnbrokers.
17.62.160 Restaurants, fast service.
17.62.200 Wireless facilities—For facilities covered under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. Section 1455(a)).
17.62.300 Wireless facilities—New and substantially changed facilities.
17.62.010 Adult-oriented businesses.
A. Purpose. It is the intent of this section to prevent community-wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of adult-oriented businesses in close proximity to each other or in proximity to other incompatible uses such as schools for minors, religious institutions, and residentially zoned districts. The city council finds that it has been demonstrated in various communities that the concentration of adult-oriented businesses causes an increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above can cause other businesses and residents to move elsewhere. It is, therefore, the purpose of this section to establish reasonable and uniform regulations to prevent the concentration of adult-oriented businesses or their close proximity to incompatible uses, while permitting the location of adult-oriented businesses in certain areas. Operating regulations for adult-oriented businesses are set forth in Chapter 9.28.
B. Minimum Proximity Requirements. No adult-oriented business shall be established or located within certain distances of certain specified land uses or zones as set forth below.
1. No such business shall be established or located within one thousand feet of any other adult-oriented business.
2. No such business shall be established or located in any residential zone in the city or within two hundred fifty feet from any residential zone located in the city of San Pablo.
3. No such business shall be established or located within seven hundred fifty feet from any existing religious institution, park, or school on property located in the city of San Pablo.
4. The distances set forth above shall be measured as a radius from the primary entrance of the building in which the adult-oriented business is located, or is to be located, to the property lines of the property so zoned or used without regard to intervening structures.
C. Nonconforming Adult-Oriented Business Uses. Existing nonconforming adult-oriented business uses shall not be subject to this chapter, except as provided below.
1. Abandonment. Notwithstanding the above, any discontinuance or abandonment of the use of any lot or structure as an adult-oriented business for a consecutive six-month period shall result in a loss of legal nonconforming status of such use.
2. Any adult-oriented business operating as a conforming use with an approved adult-oriented business regulatory permit from the city shall not be rendered a nonconforming use by the subsequent location of a religious institution or school within the locational limitations of this chapter.
3. All persons who possess an outstanding business permit or license heretofore issued for the operation of an adult-oriented business and all persons required by this section to obtain an adult-oriented business performer permit must apply for and obtain such a permit within ninety days of the effective date of this chapter. Failure to do so and continued operation of an adult-oriented business, or the continued performances depicting specified anatomical areas or specified sexual activities in an adult-oriented business, after such time without a permit shall constitute a violation of this section.
D. Exclusions. This section does not apply to any of the following activities:
1. Any activity of a person licensed to practice one or more of the healing arts pursuant to Division 2 of the California Business and Professions Code, if and to the extent that such activity is authorized by such license.
2. Any activity conducted or sponsored by any school district or other public agency; so long as such activity is being conducted as part of and within the scope of an authorized and regular part of the curriculum or is part of a training or instructional program being conducted by a public agency.
3. Any activity conducted by a person pursuant to any license issued by the state of California or any agency thereof charged with the responsibility of licensing, prescribing standards for, and supervising such activity or profession, if and to the extent that such activity is conducted within the course and scope of the exercise of the privileges authorized by such license, or the duties of such agency.
4. Any activity as to which a license to operate a massage establishment or a license to act as a massage therapist is required pursuant to Chapter 5.36. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.020 Alcoholic beverage sales.
A. Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for alcoholic beverage sales businesses. It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of this use and activities on adjacent and surrounding land uses.
B. Alcoholic Beverage. For the purposes of this section, “alcoholic beverage” means alcohol, spirits, liquor, wine, beer, or any liquid or solid containing alcohol, spirits, wine, or beer, that contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances.
C. Restrictions on Location. No alcoholic beverage sales use shall be located closer than one thousand feet to any other alcoholic beverage sales use, school, licensed day care center, public park or playground, church, senior citizen facility, or licensed alcohol or drug treatment facility except as follows:
1. If the activity is in conjunction with a full-service restaurant; or
2. In establishments with twenty-five or more full-time equivalent employees and a total gross floor area twenty thousand square feet or more.
D. Full-Service Restaurant. For the purposes of this section, “full-service restaurant” means a place which is regularly and in a bona fide manner used and kept open for the serving of at least lunch and dinner to guests for compensation and which has suitable kitchen facilities connected therewith, containing conveniences for cooking an assortment of foods which may be required for such meals. The sale or service of sandwiches (whether prepared in a kitchen or made elsewhere and heated up on the premises) or snack foods shall not constitute a full-service restaurant. The following additional provisions shall be used to define a full-service restaurant:
1. A full-service restaurant shall serve meals to guests at all times the establishment is open for business. An establishment shall not be considered a full-service restaurant if it serves alcohol without meal service being provided, with the exception that alcohol sales to restaurant patrons may continue for up to two hours after meal service has ceased to allow guests to comfortably complete their meals.
2. The offer of meals is not adequate to meet the above criteria. A full-service restaurant shall make actual and substantial sales of meals to guests for compensation. Substantial sales shall mean that no less than sixty percent of total revenue shall be generated from food service and no more than forty percent of revenue from the sales of alcohol.
3. “Meals” means the usual assortment of foods commonly ordered at various times of the day for the cuisine served. The service of snack foods and/or appetizers alone shall not be deemed compliance with this requirement. Meals shall be prepared on the premises. Heating of food prepared elsewhere shall not constitute a meal for the purposes of this section.
4. Premises shall be equipped for meal service and maintained in good faith. Premises shall possess and maintain appliances for the cooking of a variety of foods such as stoves, ovens, broilers, or other devices, as well as pots, pans, or containers that can be used for cooking. Premises shall possess the necessary utensils, table service, and condiment dispensers with which to serve meals to the public.
5. A full-service restaurant shall comply with all local health department and state standards.
6. A full-service restaurant may have a separate lounge or bar area; provided, that the restaurant and bar/lounge area operate as a single entity. The physical layout, entry location(s), spatial connection between the areas, and operational characteristics, among other factors, shall be used to determine compliance. Any bar/lounge area cannot remain open when the dining area is closed. However, the dining area may be open while the bar/lounge area is closed. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.030 Arcades.
A. Purpose. This section provides provisions for large and small arcades to ensure that they are properly licensed and potential negative impacts are avoided.
B. Minor Arcades. Uses classified as recreation—minor arcades in Division VI, Glossary, are subject to the following provisions:
1. There shall be at least eight hundred square feet of gross floor area per each game, except that taverns or operations licensed by the California Department of Alcoholic Beverage Control for on-sale consumption of alcoholic beverages may have up to three games regardless of the gross square foot floor area of the establishment; provided, that such tavern or operation prohibits the presence of minors at all times.
2. Each game shall be properly licensed by the city clerk.
3. Minors (under the age of eighteen years) shall be restricted from operating any such game during normal school hours and after curfew as set down in Section 9.32.010, unless accompanied by a parent, legal guardian, or other adult person having the legal care and custody of such minor.
C. Major Arcades. Uses classified as recreation—major arcades in Division VI, Glossary, shall be subject to the following provision:
1. Minors (under the age of eighteen years) shall be restricted from operating any such game during normal school hours and after curfew as set down in Section 9.32.010, unless accompanied by a parent, legal guardian, or other adult person having the legal care and custody of such minor.
2. Internet “cafe” gaming is not an allowed use. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.040 Automotive repair.
A. Purpose. This section applies to all uses classified as automotive, general repair and automotive, limited repair and provides development standards to reduce the off-site impact from typical repair activities.
B. Location of Work. All repair work shall be conducted indoors.
C. Inoperable Vehicles. Any inoperable vehicle shall not be stored outdoors for more than fifteen consecutive days. Such storage is limited to vehicles awaiting repair or servicing.
D. Operable Vehicles. Operable vehicles may be stored outdoors only when awaiting repairs or servicing, or when awaiting pickup by the customer after repairs or servicing have been completed. The maximum period such vehicle shall be stored outdoors is thirty days in any twelve-month period.
E. Outdoor Storage. Outdoor storage shall comply with the provisions of Chapter 17.52, Outdoor Sales, Storage and Seating. In addition, outdoor storage of motor vehicle parts, lubricants, paints, solvents, chemicals, or portions of vehicles is prohibited.
F. Trash. Trash shall be removed at least weekly.
G. Impacts. Paint or fumes from the repair operation shall not cross over the line of any parcel zoned or used for a residential use. The repair operation also shall comply with applicable air and water quality regulations and laws. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.050 Check cashing businesses and payday loan businesses.
A. Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for check cashing businesses and payday loan businesses. It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of this use and activities on adjacent and surrounding land uses.
B. Findings. To approve an application for a check cashing business or payday loan business, the planning commission must, in addition to the general use permit findings set forth in Section 17.20.040, Conditional use permit, find that the proposed use will not be detrimental to the peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such use or be detrimental or injurious to the property and improvements in the neighborhood or to the general welfare of the city.
C. Location. Check cashing businesses and payday loan businesses within the city shall be allowed only as indicated in Division III, Zoning Districts, Allowed Uses, and Development Standards. No check cashing business or payday loan business shall be established within one thousand feet of another check cashing business or payday loan business, including those check cashing businesses or payday loan businesses located within other establishments.
D. Distance. The distances set forth above shall be measured as a radius from the primary entrance of the building in which the check cashing business or payday loan business is located, or is to be located, to the exterior building entrance of the corresponding check cashing business or payday loan business without regard to intervening structures.
E. Accessory Uses. A check cashing business or payday loan business occupying or leasing space within another establishment as an accessory use shall be subject to the regulations of this section. This provision shall apply only to new check cashing businesses or payday loan businesses and not to existing check cashing businesses or payday loan businesses at the time of adoption of the ordinance codified in this section.
F. Use Permit Conditions. The planning commission may impose conditions as it deems necessary to protect the public health, safety, and welfare, including but not limited to the conditions identified in this chapter. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.060 Cottage food operation.
A. Purpose. State law (Assembly Bill 1616) requires that individuals be allowed to prepare and/or package certain foods in private-home kitchens referred to as cottage food operations (CFO).
B. Applicability. CFOs are allowed under the home occupation use class in the city of San Pablo. As defined by the California Department of Public Health, a “CFO” is an enterprise at a private home where low-risk food products are prepared or packaged for public consumption. A “cottage food operator” is an individual who operates a CFO in his or her private home and is the owner of the CFO. All cottage food operators will have to meet specified requirements pursuant to the California Health and Safety Code related to preparing foods.
1. Foods That Can Be Prepared by a CFO. Only foods that are defined as “non-potentially hazardous” are approved for preparation by CFOs. These are foods that do not require refrigeration to keep them safe from bacterial growth that could make people sick. The California Department of Public Health will establish and maintain a list of these approved foods on its website and will establish a process by which new foods can be added to the list and other foods can be challenged and removed. Generally these foods that do not require refrigeration include the following:
a. Baked goods;
b. Candy;
c. Dry baking mixes;
d. Granola, cereals, trail mixes;
e. Honey;
f. Jams, jellies, preserves;
g. Popcorn.
C. Requirements. Business license and Contra Costa County environmental health department permit. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.070 E-cigarettes.
The sale of electronic cigarettes and related vapor and paraphernalia requires a use permit before the planning commission. The sale of e-cigarettes are prohibited wherever the sale of cigarettes is prohibited. No person shall sell or permit to be sold cigarettes to any person unless such person is eighteen years old or older. Sale of e-cigarettes from vending machines is prohibited. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.080 Green businesses.
A. Purpose. San Pablo recognizes the Bay Area Green Business Program. This program was developed by Bay Area public agencies, United States Environmental Protection Agency, California Environmental Protection Agency Department of Toxic Substances Control and the business community. The program is currently offered in all nine Bay Area counties.
B. Applicability. Businesses in twenty different industries, including auto repair, printers, hotels, restaurants, landscapers, attorneys, janitorial and laundry services, grocery and retail stores, home remodelers, architects, engineers, and a variety of office and home-based businesses can meet the standards of the Bay Area Green Business Program.
C. Incentives. Successful participation to meet the regional guidelines and obtain certification will improve operation and create money saving opportunities. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.090 Healthy food stores.
A. Purpose. The purpose of this section is to allow for additional flexibility for convenience and/or grocery stores that are classified as healthy food stores in Division VI, Glossary, with the intent of increasing healthy food options throughout San Pablo.
B. Incentives. The following provisions are intended to encourage the establishment of healthy food stores:
1. Healthy food stores may be located in additional zoning districts as designated in Division III, Zoning Districts, Allowed Uses, and Development Standards.
2. Available Incentives.
a. Reduction in parking requirements by up to ten percent.
b. Adjustment to floor area ratio (FAR) requirements.
c. Expedited permit processing for convenient healthy food and grocery store development. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.100 Internet gaming devices.
A. Purpose. To address state unregulated Internet gaming activities commonly known as computer sweepstakes or Internet device cafes.
B. Requirements.
1. Location. No use shall be located within one thousand feet from the boundaries of a parcel of real estate having situated on it a school, public library, public playground, church, or religious institution, or within one thousand feet of any establishment that has been issued a liquor permit by the state of California.
2. Licensed with Police. Licensing required with the police department.
3. Hours. Limited to ten a.m. through ten p.m.
4. Use permit required by planning commission.
5. The name, description, model number and serial number of each computerized sweepstakes device on the premises and any other device on the premises that is necessary to the operation of the computerized sweepstakes device.
6. A list of each separate prize that may be given out and each separate dollar amount that may be given; and the odds of winning any offered prize or dollar amount awarded for the participation in any game, activity, program, scheme or play, use or participation in any way in a computerized sweepstakes device or participation in any other activity or promotion in the sweepstakes/Internet cafe. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.110 Junkyards.
A. Purpose. Existing nonconforming uses classified as junkyards in Division VI, Glossary, are subject to the provisions of this section prior to being discontinued.
B. Cross-Reference. In addition to the provisions of this section, automobile wrecking establishments shall comply with the provisions of Chapter 5.20.
C. Screening. Screening requirements for junkyards are contained in Chapter 17.45, Fences, Walls, Gates, and Screening.
D. Regulatory Compliance. Junkyards shall comply with all applicable air and water quality regulations and laws.
E. Police Access. The premises shall be so arranged that inspection of access to any part of the premises can be had at all times by the police department. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.120 Massage establishments and escort services.
A. Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for massage establishments and escort service uses. It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of these uses and activities on adjacent and surrounding land uses.
B. Permitted Districts. Massage establishments and/or escort services may be allowed only in those zoning districts as specified in Division III, Zoning Districts, Allowed Uses, and Development Standards.
C. Requirements. Massage establishments and/or escort services are subject to the following regulations:
1. Operation shall be subject to approval of a conditional use permit by the planning commission. The application of a conditional use permit is deemed incomplete until such time as a background check and written approval has been received from the chief of police.
2. Public Buildings. No massage establishment or escort service business shall be established within two hundred fifty feet of the property line of any religious institution, school, public park, or public building.
3. Other Massage Establishment or Escort Service Businesses. No massage establishment or escort service shall be established within one thousand feet of any other massage establishment or escort service, or within one thousand feet of an adult-oriented business as identified in the title.
4 Residential Districts. No massage establishment or escort service shall be established within two hundred fifty feet of any residentially zoned district.
5. Measure of Distance. The distance between any massage establishment or escort service business and any religious institution, school, public park, public building, or any area zoned for residential use shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of the massage establishment or escort service to the closest property line of the religious institution, school, public park, public building, adult-oriented business, or area zoned for residential use.
6. No massage establishment or escort service use shall be combined with a use involving adult entertainment. No massage establishment shall be combined with a use involving an escort service.
7. The conditions adopted as part of the approved conditional use permit shall be binding on the applicant and all successors in interest. In addition, the applicant shall sign the conditional use permit acknowledging she/he has read and understood the conditions of approval for the use permit. In case of a transfer of ownership, the transferee shall obtain a copy of the approved conditional use permit from the zoning administrator. All transferees shall sign a massage establishment ownership transfer agreement or escort service owner transfer agreement provided by the zoning administrator acknowledging the conditions of approval set forth in the permit. The signed copy of the agreement shall be filed with the planning commission, finance department, and police department. Failure to comply with this section may result in revocation of the conditional use permit.
8. All employees must have on file their business license and state license.
D. Exemptions. A massage therapist properly licensed under Sections 4600 through 4620 of the California Business and Professions Code and subject to Chapter 5.36 is not required to obtain a permit pursuant to this section. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.130 Cannabis facilities, delivery and cultivation.
A. Purpose. The purpose of this section is to prohibit the establishment, operation, and location of cannabis facilities, delivery, and cultivation, as defined, in the city of San Pablo, but to allow limited personal cultivation and medical cannabis use between a single patient and primary caregiver consistent with state law.
B. Definitions. For the purposes of this section, the following definitions shall apply:
1. Cultivation. “Cultivation” shall have the same meaning as that set forth in Business and Professions Code Section 26001, and shall include any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.
2. Indoors. “Indoors” means within a fully enclosed and secure structure as defined herein.
3. Cannabis. “Cannabis” shall have the same meaning as “cannabis” in Health and Safety Code Section 11018, and the same meaning as “cannabis” in Business and Professions Code Section 26001(f). This definition includes but is not limited to all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
4. “Cannabis, commercial facilities and activities” includes all commercial cannabis activities as set forth in Business and Professions Code Section 26001, including, but not limited to, the cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, delivery or sale of cannabis or cannabis products.
5. Cannabis, Delivery. “Delivery” includes: (a) the same meaning as that set forth in Business and Professions Code Section 26001(p) for the commercial transfer of cannabis or cannabis products to a customer; (b) the commercial delivery or transfer of medical cannabis or medical cannabis products; or (c) any technology platform that arranges for or facilitates the commercial transfer of cannabis or medical cannabis.
6. “Cannabis facility” includes “cannabis, commercial facilities and activities” and a “medical cannabis facility.”
7. Cannabis, Limited Personal Cultivation. The cultivation of “cannabis for personal use” is subject to the definitions and restrictions contained in subsection C of this section.
8. “Cannabis, outdoor cultivation” includes all cultivation of cannabis outdoors at any location that is not within a fully enclosed and secure structure.
9. “Medical cannabis” means a product containing cannabis, including, but not limited to, its concentrates and extractions, intended to be sold for use by medical cannabis patients in California pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code.
10. “Medical cannabis facility” means and includes (a) any facility, building, structure or location, whether fixed or mobile, where medical cannabis is offered for sale; or (b) any not-for-profit site, facility, building, structure or location where two or more qualified patients and/or persons with an identification card associate, meet or congregate in order collectively or cooperatively to distribute, sell, dispense, transmit, process, deliver, exchange or give away medical cannabis pursuant to Health and Safety Code Section 11362.5 et seq., and organized as a cannabis cooperative or collective as set forth in Health and Safety Code Section 11362.775; or (c) a dispensary as defined in California Business and Professions Code Section 19300.
a. Exceptions. A medical cannabis facility shall not include the following uses, as long as the locations of such uses are otherwise regulated by this code or applicable law including but not limited to California Health and Safety Code Section 11362.5 et seq. and California Health and Safety Code Section 11362.7 et seq.: (i) a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; (ii) a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; (iii) a residential care facility for persons with chronic life-threatening illnesses licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; (iv) a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; (v) a residential hospice licensed pursuant to Chapter 8.5 of Division 2 of the Health and Safety Code; or (vi) a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code.
11. Person with Identification Card. “Person with identification card” is as defined in Health and Safety Code Section 11362.7(c).
12. Primary Caregiver. “Primary caregiver” shall have the meaning set forth in Health and Safety Code Section 11362.7(d).
13. Private Residence. “Private residence” means a house, an apartment unit, a mobile home, or other similar dwelling, and as provided in Health and Safety Code Section 11362.2(b)(5).
14. Qualified Patient. “Qualified patient” shall have the meaning set forth in Health and Safety Code Section 11362.7(f).
C. Cultivation.
1. Outdoor cultivation of cannabis is prohibited. Such use is a public nuisance. The city shall not issue, approve or grant any permit, license or other entitlement for outdoor cultivation of cannabis. The prohibition in this section includes, without limitation, renting, leasing, or otherwise permitting cultivation to occupy or use a location.
2. Cultivation for commercial use or commercial facilities or activities is prohibited. Such use is a public nuisance. The city shall not issue, approve or grant any permit, license or other entitlement for commercial cultivation of cannabis. The prohibitions in this section include, without limitation, renting, leasing, or otherwise permitting cultivation to occupy or use a location, building, structure or vehicle.
3. Cannabis, Limited Personal Cultivation. Personal cannabis cultivation for medical or adult use purposes shall be permitted to the extent such cultivation is authorized by state law and in strict compliance with all the requirements set forth below:
a. Limited Number of Plants. The personal cultivation of cannabis is limited to no more than six living plants per private residence, regardless of (i) the number of residents, or (ii) how many residents are qualified medical cannabis patients, persons with an identification card or primary caregivers.
b. Residency Requirement. Cultivation of cannabis for personal use may occur only on parcels with an existing legal residence occupied by a full-time resident.
c. Location. The cultivation occurs either: (i) within a single private residence; or (ii) inside a fully enclosed and secure structure located upon the grounds of a private residence.
d. Cultivation Areas. The cultivation areas, including any lighting, plumbing, or electrical components used, comply with Title 15 (Buildings and Construction). The cultivation areas must be properly ventilated so as not to create humidity, mold, or other related problems. Lighting shall not exceed one thousand watts per light.
e. Visibility. No visible markers or evidence indicating that cannabis is being cultivated on the site shall be visible from the public right-of-way.
f. Security. All enclosures and structures used for cannabis cultivation shall have security measures sufficient to prevent access by children or other unauthorized persons.
g. Prohibition of Volatile Solvents. The manufacture of cannabis products for personal noncommercial consumption shall be limited to processes that are solvent-free or that employ only nonflammable, nontoxic solvents that are recognized as safe pursuant to the Federal Food, Drug and Cosmetic Act. The use of volatile solvents to manufacture cannabis products for personal consumption is prohibited.
h. Structures. All structures used for personal cannabis cultivation (including accessory structures, greenhouses, and garages) must be legally constructed with all applicable building and fire permits (including grading, building, electrical, mechanical and plumbing) and shall adhere to the development standards within the base zone.
i. Odor Control. All structures used for cultivation shall be equipped with odor control filtration and ventilation systems such that the odors of cannabis cannot be readily detected from outside of the structure.
j. Noise. Use of air conditioning and ventilation equipment shall comply with Chapter 17.50 (Noise). The use of generators is prohibited, except as short-term temporary emergency back-up systems.
k. Primary Use. The primary use of the property remains at all times as a residence, with legal and functioning cooking, sleeping, and sanitation facilities with proper ingress and egress. No room shall be used for cannabis cultivation where such cultivation will impair or prevent the primary uses of cooking of meals, sleeping, and bathing.
l. Consent. Consent of the property owner must be obtained prior to any cultivation commencing.
D. Prohibition of Delivery. Delivery, as defined in this section, of cannabis to or from any location within the jurisdictional limits of the city of San Pablo regardless of zoning district is prohibited. Such use is a public nuisance. The city shall not issue, approve or grant any permit, license or other entitlement for delivery of cannabis. The prohibitions in this section include, without limitation, renting, leasing, or otherwise permitting delivery to occupy or use a location, building, structure or vehicle. Transportation through the city on public streets is allowed consistent with Business and Professions Code Section 26080(b).
E. Prohibition of Medical Cannabis Facilities. Medical cannabis facilities are prohibited in the city of San Pablo regardless of zoning district. Such use is a public nuisance. No person or entity shall operate, locate, allow or otherwise permit or suffer a medical cannabis facility within the city of San Pablo. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical cannabis facility. The prohibitions in this section include, without limitation, renting, leasing, or otherwise permitting a medical cannabis facility to occupy or use a location, building, structure or vehicle.
F. Prohibition of Commercial Cannabis Facilities and Activities. Cannabis commercial facilities and activities are prohibited in the city of San Pablo regardless of zoning district. Such use is a public nuisance. No person or entity shall operate, locate, allow or otherwise permit or suffer a cannabis commercial facility and activities within the city of San Pablo. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a cannabis commercial facility or activities. The prohibitions in this section include, without limitation, renting, leasing, or otherwise permitting a cannabis commercial facility and activities to occupy or use a location, building, structure or vehicle.
G. Enforcement.
1. Violations of this section may be enforced by any applicable law, with criminal penalties limited if inconsistent with the Compassionate Use Act of 1996 or California Health and Safety Code Section 11362.7 et seq.
2. Any person who violates any provision of this section shall be guilty of a separate offense for each and every day during any portion of which any such person commits, continues, permits, or causes a violation thereof.
3. Violation of any provisions of this chapter is a misdemeanor, unless the city attorney authorizes issuance of an infraction citation or files a complaint charging the offense as an infraction, or the court, upon the prosecutorial recommendation of the city attorney, determines that the offense is an infraction.
4. In addition to the civil remedies and criminal penalties set forth above, any violation of the provisions of this chapter may be subject to administrative citations pursuant to Chapter 1.10. (Ord. 2020-002 § 25, 2020: Ord. 2017-005 § 5, 2017: Ord. 2016-001 § 1, 2016: Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.140 Mobile vending.
A. Purpose. Uses classified as mobile vending are subject to the provisions of this section to ensure that the activity is not disruptive to the neighborhood character.
B. Findings. In approving an application for a mobile vending truck, the planning commission must find that the proposed use will not be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such use or be detrimental or injurious to the property and improvements in the neighborhood or to the general welfare of the city.
C. Location. Location of the mobile vending truck operation within the city shall be allowed as follows:
1. On private property in the commercial and industrial districts and with written approval from the property owner and approval of a use permit. The use permit shall only be valid for the approved location. If an operator wishes to change locations, a new use permit is required.
2. On public sidewalks along San Pablo Avenue and 23rd Street with approval of a use permit. The use permit shall only be valid in an approved location. If an operator wishes to change locations, a new use permit is required. In order for a use permit to be granted, ongoing access to public sidewalks and utilities is required by public works.
D. Criteria. Applications for individual sites will be reviewed subject to the following criteria:
1. When located on private property, there is adequate parking for both the established business on the site and parking for customers of the mobile vending operation;
2. When located on public sidewalk, there is adequate area for placement of the mobile vending equipment without obstructing access pursuant to ADA laws, applicable building codes, and required clear visibility areas;
3. The vending truck can be located on the site so as not to impede on-site traffic flow or impact safe sight lines as determined by the public works division; and
4. The off-site location of where a vehicle is to be stored overnight must be provided as part of the use permit review. Vehicles may not be parked in residentially zoned areas within San Pablo and any proposed site within the city must be approved as part of the use permit. As a condition of approval, it may be required that an applicant use an approved commissary for vehicle storage. Note that a commissary is classified as an industry—limited use class in Division VI, Glossary.
E. Other Mobile Vending Trucks. Mobile vending trucks may co-locate or cluster together as long as all other required criteria are met.
F. Site Placement. A map must be submitted showing the subject site and on-site location of both the vehicle and any business-related amenities (i.e., benches and tables). The vehicle may not be parked in the following locations on the proposed site:
1. In any of the marked on-site parking spaces that are used to provide the required number of off-street parking spaces for any permanent business located on the site as required by the zoning ordinance.
2. Within a twelve-foot radius of the outer edge of any entranceway to any building or facility used by the public, including but not limited to doors, driveways, and emergency exits.
3. At a location where space for pedestrian passage will be reduced to less than six feet.
4. Within ten feet of any residential unit.
G. Other Requirements. The applicant must present to the development services department proof of compliance with the following requirements before the use permit shall become effective and before a city business license will be issued:
1. A copy of the Contra Costa health services license for sale and preparation of food items from a mobile food truck.
2. Proof that the vehicle is state certified for operation as a mobile food preparation truck, including compliance with the department of housing and community development, plumbing and electrical standards, and the display of the required certification on the vehicle.
3. Proof of Contra Costa health services’ approval for use of a certified commissary or restaurant for off-site preparation and storage of each of the different types of proposed foods.
4. Proof of a Contra Costa health services-approved application for use of a certified commissary or rendering facility for disposal of used cooking grease and oils (no discharge of water or other fluids shall occur on site).
5. Copy of a signed approval for use of a commissary for storage, preparation, and cleaning of a vehicle or, if a restaurant is used as a base, from a rendering facility for cleaning of a vehicle.
6. Proof of current vehicle insurance and registration.
7. Written approval from the site tenant or adjacent business allowing vending operation employees the use of restrooms for proper health and sanitation purposes.
8. Written permission from the property owner of the site where the vehicle is to be stored and located.
H. Washing. Wash down of the truck shall only be permitted at an approved facility that will capture the wastewater in an approved sanitary sewer. Wash down of the truck shall not be permitted on the subject property.
I. Trash. Adequate trash receptacles and/or a dumpster, consistent with the provisions of Chapter 17.58, Refuse Disposal and Recycling, shall be provided on site to accommodate trash generated by the business.
J. Cleanup. Employees of the mobile vendor trucks shall clean up the site and adjacent surrounding area of trash and debris generated by the business at the end of each business day.
K. Hours of Operation. Operation of the business shall be limited to the hours between seven a.m. and eight p.m.
L. Overnight Parking. The mobile food truck must leave the site at the conclusion of each business day and may not remain on site overnight. Food truck festivals are subject to temporary use requirements as outlined in Chapter 17.64, Temporary Uses.
M. Preparation of Food. Preparation of food items may only occur at Contra Costa health services-approved facilities. Violation of this condition will result in immediate action to revoke the use permit.
N. Cooking Waste. Disposal of cooking waste may only occur at Contra Costa health services-approved facilities. Violation of this condition will result in immediate action to revoke the use permit. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.150 Pawnshops or pawnbrokers.
A. Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for pawnshops or pawnbrokers, not cash for gold entities (see secondhand dealers). It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of this use and activities on adjacent and surrounding land uses.
B. Findings. To approve an application for a pawnshop or pawnbroker, the planning commission must, in addition to the general conditional use permit findings set forth in Section 17.20.040, Conditional use permit, find that the proposed use will not be detrimental to the peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such use or be detrimental or injurious to the property and improvements in the neighborhood or to the general welfare of the city.
C. Location. Pawnshops or pawnbrokers in the city shall be allowed only in the commercial districts, subject to a use permit approved by the planning commission. No pawnshops or pawnbrokers shall be established within one thousand feet of another pawnshop or pawnbroker.
D. Distance. The distances set forth above shall be measured as a radius from the primary entrance of the building in which the pawnshop or pawnbroker is located, or is to be located, to the exterior building entrance of the corresponding pawnshop or pawnbroker without regard to intervening structures.
E. Use Permit Conditions. The planning commission may impose the condition identified in this section and conditions it deems necessary to protect the public health, safety, and welfare, including but not limited to the following condition identified in Section 17.20.040, Conditional use permit:
1. The pawnshop or pawnbroker shall not purchase or sell stolen items. If police investigations recover stolen items, the use permit shall be revoked. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.160 Restaurants, fast service.
A. Purpose. Provisions within this chapter have a dual purpose. Standards for fast-food drive-in and drive-through windows and remote tellers are provided to address the mitigation of traffic, congestion, excessive pavement, pedestrian connections, litter, and noise and the adjacency to surrounding incompatible uses. Provisions to encourage the provision of healthy food options within San Pablo neighborhoods are also included.
B. Applicability. Development standards herein shall apply to all new permits for facilities defined as restaurants, fast service and will be reviewed in conjunction with any required conditional use permit and/or development review application.
C. Development and Design Standards. The following standards shall be the minimum requirements for all drive-in and drive-through facilities. Deviations to these provisions may be considered through the issuance of a site plan and architectural review permit.
1. Location. Uses with drive-through facilities shall be three hundred feet away from any intersection and from another drive-through facility on the same side of the street, except within a shopping center or master plan.
2. Separation from Residential Areas. Fast-food restaurant facilities shall be a minimum of one thousand feet away from residential district boundaries. This distance may be decreased with a use permit as specified in subsection D of this section, Healthy Food Options.
3. Separation from Schools. Fast-food restaurant facilities shall be a minimum of one thousand feet away from any school. This distance may be decreased with a use permit as specified below under subsection D of this section, Healthy Food Options.
4. Site Area. Uses with drive-through facilities shall have a minimum one acre net land area. This minimum land area may be modified when the drive-through facility is within a master plan or an integrated shopping center through the design review process.
5. Floor Area. The minimum floor area for drive-through facilities shall be one thousand square feet. The minimum floor area for a drive-through facility other than a fast-food restaurant may be modified through the design review process.
6. Site Coverage. The maximum lot coverage shall be forty percent of the net lot area. The minimum on-site landscaping, which includes articulated plazas, courtyards, and patios, shall be fifteen percent of the net lot area exclusive of public right-of-way.
7. Parking and Aisles. Parking and the drive-through lane shall be set back forty-five feet from the ultimate curb face. Greater setbacks may be required as mentioned in an applicable specific plan or as deemed necessary during the design review process.
8. Site Planning/Building Orientation. Future drive-through facilities in a master plan or shopping center shall be identified early in the review process to avoid retrofitting the uses at a later date. The site design shall minimize pedestrian/vehicle conflicts and avoid locating driveways and service areas which interfere with the flow of on-site circulation. Building placement shall be done in a manner to create new pedestrian spaces and plaza areas. Buildings shall orient the public entrances toward the street. Building layout shall be oriented to screen the drive-through lane. Drive-through lanes shall be screened through building orientation and the use of a combination of low-screen walls, heavy landscaping, and trelliswork.
9. Stacking Distance/Parking. The drive-through lane shall be of a sufficient length to accommodate the necessary stacking of cars. The stacking distance shall be determined through a parking study as provided in Chapter 17.54, Parking and Loading. Each drive-through lane shall be separate from the circulation route necessary for ingress and egress from the property or access to any parking spaces within the site. These requirements do not apply to the reuse of existing properties.
10 Parking. The parking requirements for drive-through facilities shall be determined according to Chapter 17.54, Parking and Loading. The gross floor area for outdoor seating shall be subject to the same parking requirement.
11. Pedestrian Orientation. The site plan shall create opportunities for courtyards and plazas and other landscape open space to promote safe and convenient pedestrian movement with continuous landscape pathways between buildings. The design shall discourage a need for pedestrians to have to cross a drive-through lane wherever possible.
12. Architecture. Drive-through facilities within an integrated shopping center or master plan must have an architectural style consistent with the theme established in the center. Architecture must provide compatibility with surrounding uses in form, materials, colors, scale, etc. Building planes shall have variation in depth and angle to create variety and interest in the basic form and silhouette of the building. Articulation of building surface shall be encouraged through the use of openings and recesses which create texture and shadow patterns. Building entrances shall be well articulated and project a formal entrance through variation of architectural plane, pavement surface, treatment, and landscape plaza.
13. Signs. Drive-through facilities in an integrated shopping center or master plan must comply with the uniform sign program as established in the center.
14. Performance Standards. Special performance standards for fast-food restaurants with drive-through facilities: The use shall be operated in a manner that does not interfere with the normal use of adjoining properties. If in the opinion of the zoning administrator the provisions of this subsection are being violated, the violations shall be grounds for reopening conditional use permit hearings and adding conditions to control the violation. Performance standards include, but are not limited to, the following considerations, which, where appropriate, shall be incorporated as conditions of approval in all use permits as determined by the planning commission or city council:
a. Noise levels measured at the property line shall not exceed the level of background noise normally found in the area.
b. The premises shall be kept clean, and the operator shall make all reasonable efforts to see that no trash or litter originating from the use is deposited on adjacent properties. For drive-through restaurants or other uses which typically generate trash or litter, adequate trash containers, as determined by the zoning administrator, shall be required and employees shall be required daily to pick up trash or litter originating from the site and within three hundred feet of the perimeter of the property.
c. All graffiti shall be removed within seventy-two hours.
d. No undesirable odors shall be generated on the site.
e. The on-site manager of the use shall take whatever steps are deemed necessary to assure the orderly conduct of employees, patrons, and visitors on the premises.
f. A copy of these performance standards and all conditional use permit conditions of approval shall be posted alongside the necessary business licenses and be visible at all times to employees.
D. Healthy Food Options. A use permit may be issued to eliminate the one-thousand-foot separation requirement between fast-service restaurants, schools, and residential districts if it can be demonstrated by the applicant that healthy food options will be available. A minimum of twenty percent of the menu options shall consist of healthy food choices as defined in Division VI, Glossary. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.170 Secondhand dealers.
A. Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for secondhand dealers including “cash for gold” establishments as further regulated in Chapter 5.28. It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of this use and activities on adjacent and surrounding land uses.
B. Cash for Gold and Pawnbrokers. For the purposes of this section a “cash for gold facility” means an establishment that is in the business of accepting gold, silver and other precious metals primarily from jewelry in exchange for monies. A “pawnbroker” is a person or establishment engaged in the business of receiving goods, including motor vehicles, in pledge as security for a loan as defined in Financial Code Section 21000, unless otherwise exempt under the Financial Code.
C. Location. Consistent with Division III, Zoning Districts, Allowed Uses, and Development Standards, secondhand sales within the city shall be allowed only in the commercial districts, subject to an administrative approval by the zoning administrator.
D. Findings. To approve an application for secondhand dealers, the zoning administrator must make the general administrative approval set forth in Section 17.18.020, Plan check/zoning clearance. The following additional provisions apply to secondhand dealers:
1. No pawnbrokers and businesses engaged in secondhand dealing and/or the purchase and selling of gold or other precious metals shall be located within two thousand feet of any other business specified in this subsection D.
2. Pawnbrokers and businesses engaged in secondhand dealing and/or the purchase and selling of gold and other precious metals shall be no closer than two hundred fifty feet from the property line of any residential zones, religious institution, school, public park, or public building.
3. No more than three pawnbrokers and/or cash for gold facilities, in total, shall be allowed within the city.
4. All businesses specified in this subsection D are required to obtain a use permit approved by the planning commission and must make the general use permit findings set forth in Section 17.20.040.
5. Distance. The distances set forth above shall be measured as a radius from the primary entrance of the building in which the secondhand sales is located, or is to be located, to the exterior building entrance of the corresponding secondhand sales without regard to intervening structures.
6. All businesses specified in this subsection D are subject to the requirements for the licensing of secondhand dealers and pawnbrokers, and for their reporting of tangible personal property as outlined in Chapter 5.28, Secondhand Dealers and Pawnbrokers.
E. Conditions. The planning commission or zoning administrator, as the case may be, may impose such conditions it deems necessary to protect the public health, safety and welfare, including but not limited to restrictions on the outdoor storage and/or outdoor display of merchandise and signage that is deemed to contribute to blight including but not limited to temporary signs and “sign spinners.” In addition each secondhand dealer and pawnbroker must obtain a license from the police department every two years.
F. Revocation. Subject to any limitations set forth in state law, the use permit or administrative approval may be revoked if conditions of operation are violated, if a public nuisance is deemed to exist, or if police investigations recover stolen items bought or sold by the secondhand sales store. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.180 Smoke shops.
A. Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for smoke shops. It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of this use and activities on adjacent and surrounding land uses.
B. Findings. To approve an application for a smoke shop, the planning commission must, in addition to the general use permit findings set forth in Section 17.20.040, Conditional use permit, find that the proposed use will not be detrimental to the peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such use or be detrimental or injurious to the property and improvements in the neighborhood or to the general welfare of the city.
C. Location. Smoke shops within the city shall be allowed only in the commercial districts, subject to a use permit approved by the planning commission. No smoke shop shall be established within six hundred feet of any other smoke shop, or any school, licensed day care center, public park or playground, senior citizen facility, or licensed alcohol or drug treatment facility.
D. Maximum Number. Given the potential adverse impacts of this use and activities on adjacent and surrounding land uses and on the community that cannot be mitigated completely, the maximum number of smoke shops is limited to six.
E. Smoke Shops Defined. The smoke shop use class consists of any establishment that either devotes twenty percent or more of sales floor area or product display area to, or derives twenty percent or more of gross sales receipts from, the sale or exchange of tobacco or marijuana paraphernalia and/or tobacco or marijuana products as defined in Division VI, Glossary, and Section 17.62.130.
F. Distance. The distances set forth above shall be measured as a radius from the primary entrance of the building in which the smoke shop is located, or is to be located, to the property lines of the property so zoned or used without regard to intervening structures.
G. Use Permit Conditions. The planning commission may impose conditions identified in this section and conditions it deems necessary to protect the public health, safety, and welfare, including but not limited to the conditions identified in Section 17.20.040, Conditional use permit.
H. Development and Operational Standards. It is unlawful for any smoke shop use class, as defined in this code, to fail to comply with the following development and operational standards. Each such standard shall be deemed to be incorporated by operation of law into each use permit granted.
1. Signs and Displays. Signs and displays shall not obstruct the sales counter, cash register, seller, and customer from view from the exterior of the premises.
2. Mode of Sale. Tobacco paraphernalia and/or tobacco product sales from drive-up or walk-up service windows shall be prohibited.
3. Compliance with Local, State, and Federal Laws. No smoke shop shall violate any applicable local, state, or federal regulation including but not limited to Chapter 5.06, Licensure of Tobacco Retailers. (Ord. 2017-005 § 6, 2017: Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.190 Tattoo parlors.
A Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for tattoo parlors. It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of this use and activities on adjacent and surrounding land uses.
B. Findings. To approve an application for a tattoo parlor, the planning commission must, in addition to the general use permit findings set forth in Section 17.20.040, Conditional use permit, find that the proposed use will not be detrimental to the peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such use or be detrimental or injurious to the property and improvements in the neighborhood or to the general welfare of the city.
C. Location. Tattoo parlors within the city shall be allowed only in the commercial districts, subject to a use permit approved by the planning commission. No tattoo parlor shall be established within one thousand feet of another tattoo parlor.
D. Distance. The distances set forth above shall be measured as a radius from the primary entrance of the building in which the tattoo parlor is located, or is to be located, to the exterior building entrance of the corresponding tattoo parlor without regard to intervening structures.
E. Use Permit Conditions. The planning commission may impose conditions as it deems necessary to protect the public health, safety, and welfare, including but not limited to the conditions identified in Section 17.20.040, Conditional use permit. (Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.200 Wireless facilities—For facilities covered under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. Section 1455(a)).
A. Legislative Intent.
1. Background. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, codified as 47 U.S.C. Section 1455(a), generally requires that state and local governments “may not deny, and shall approve” requests to collocate, remove or replace transmission equipment at an existing tower or base station. Federal Communications Commission regulations interpret this statute and create procedural rules for local review, which generally preempt certain subjective land-use regulations, limit permit application content requirements and provide the applicant with a potential “deemed granted” remedy when the state or local government fails to approve or deny the request within sixty days after submittal (accounting for any tolling periods). Moreover, whereas Section 704 of the Telecommunications Act of 1996, Pub. L. 104-104, codified as 47 U.S.C. Section 332, applies to only “personal wireless service facilities” (e.g., cellular telephone towers and equipment), Section 6409(a) applies to all “wireless” facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.).
2. Legislative Findings. The city council finds that the overlap between wireless deployments covered under Section 6409(a) and other wireless deployments, combined with the different substantive and procedural rules applicable to such deployments, creates a potential for confusion that harms the public interest in both efficient wireless facilities deployment and carefully planned community development in accordance with local values. The city council further finds that a separate permit application and review process specifically designed for compliance with Section 6409(a) contained in a section devoted to Section 6409(a) will mitigate such potential confusion, streamline local review and preserve the city’s land-use authority to the maximum extent possible.
3. Intent. The city of San Pablo intends this section to establish reasonable and uniform standards and procedures in a manner that protects and promotes the public health, safety and welfare, consistent with and subject to federal and California State law, for wireless facilities collocations and modifications pursuant to Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, codified as 47 U.S.C. Section 1455(a), and related FCC regulations codified in 47 CFR 1.6100 et seq. This section is not intended to, nor shall it be interpreted or applied to: (a) prohibit or effectively prohibit any personal wireless service provider’s ability to provide personal wireless services; (b) prohibit or effectively prohibit any entity’s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulation for rights-of-way management; (c) unreasonably discriminate among providers of functionally equivalent services; (d) 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 facilities comply with the FCC’s regulations concerning such emissions; (e) prohibit any collocation or modification that the city may not deny under federal or California State law; or (f) otherwise authorize the city to preempt any applicable federal or California State law.
B. Definitions. The abbreviations, phrases, terms and words in this section will have the meanings assigned to them in this section or, as may be appropriate, in Section 17.68.020 (Universal 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 section conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.
1. “Approving 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 approving authority for a project which requires a Section 6409(a) approval refers to the zoning administrator.
2. “Base station” means the same as defined by the FCC in 47 CFR 1.6100(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 CFR 1.6100(b)(9) or any equipment associated with a tower.
a. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
b. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).
c. The term includes any structure other than a tower that, at the time the relevant application is filed with the state or local government under this section, supports or houses equipment described in subsections (B)(2)(a) and (b) of this section, codified as 47 CFR 1.6100(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.
d. The term does not include any structure that, at the time the relevant application is filed with the state or local government under this section, does not support or house equipment described in subsections (B)(2)(a) and (b) of this section, codified as 47 CFR 1.6100(b)(1)(i) and (ii).
Note: As an illustration and not a limitation, the FCC’s definition refers to any structure that actually supports wireless equipment even though it was not originally intended for that purpose. Examples include, but are not limited to, wireless facilities mounted on buildings, utility poles and transmission towers, light standards or traffic signals. A structure without wireless equipment replaced with a new structure designed to bear the additional weight from wireless equipment constitutes a base station.
3. “City manager” means the city manager of the city of San Pablo or his or her designee.
4. “Collocation” means the same as defined by the FCC in 47 CFR 1.6100(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.
5. “Eligible facilities request” means the same as defined by the FCC in 47 CFR 1.6100(b)(3), as may be amended, which defines that term as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment.
6. “Eligible support structure” means the same as defined by the FCC in 47 CFR 1.6100(b)(4), as may be amended, which defines that term as any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the state or local government under this section.
7. “Existing” means the same as defined by the FCC in 47 CFR 1.6100(b)(4), as may be amended, which provides that a constructed tower or base station is existing for purposes of the FCC’s Section 6409(a) regulations if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
8. “FCC” means the Federal Communications Commission or its duly appointed successor agency.
9. “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.
10. “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.
11. “RF” means radio frequency or electromagnetic waves between thirty kHz and three hundred GHz in the electromagnetic spectrum range.
12. “Section 6409(a)” means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156, codified as 47 U.S.C. Section 1455(a), as may be amended.
13. “Site” means the same as defined by the FCC in 47 CFR 1.6100(b)(6), as may be amended, which currently provides that for towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground. The current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a state or local government, if the approval of the modification occurred prior to Section 6409(a) or otherwise outside of the Section 6409(a) process.
14. “Substantial change” means the same as defined by the FCC in 47 CFR 1.6100(b)(7), as may be amended, which currently defines that term differently based on the particular facility type (tower or base station) and location (in or outside the public right-of-way). For clarity, this definition organizes the FCC’s criteria and thresholds for a substantial change according to the facility type and location.
a. For towers outside the public rights-of-way, a substantial change occurs when:
i. The proposed collocation or modification increases the overall height more than ten percent or the height of one additional antenna array not to exceed twenty feet (whichever is greater); or
ii. The proposed collocation or modification increases the width more than twenty feet from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or
iii. The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four; or
iv. The proposed collocation or modification entails any excavation or deployment of transmission equipment outside of the current site by more than thirty feet in any direction. The site boundary from which the thirty feet is measured excludes any access or utility easements currently related to the site.
b. For towers in the public rights-of-way and for all base stations, a substantial change occurs when:
i. The proposed collocation or modification increases the overall height more than ten percent or ten feet (whichever is greater); or
ii. The proposed collocation or modification increases the width more than six feet from the edge of the wireless tower or base station; or
iii. The proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no existing ground-mounted equipment cabinets; or
iv. The proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are ten percent larger in height or volume than any existing ground-mounted equipment cabinets; or
v. The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.
c. In addition, for all towers and base stations wherever located, a substantial change occurs when:
i. The proposed collocation or modification would defeat the existing concealment elements of the support structure as determined by the director; or
ii. The proposed collocation or modification violates a prior condition of approval; provided, however, that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets or excavation that is inconsistent with the thresholds for a substantial change described in this section.
Note: The thresholds for a substantial change outlined above are disjunctive. The failure to meet any one or more of the applicable thresholds means that a substantial change would occur. The thresholds for height increases are cumulative limits. For sites with horizontally separated deployments, the cumulative limit is measured from the originally permitted support structure without regard to any increases in size due to wireless equipment not included in the original design. For sites with vertically separated deployments, the cumulative limit is measured from the permitted site dimensions as they existed on February 22, 2012—the date that Congress passed Section 6409(a).
15. “Tower” means the same as defined by the FCC in 47 CFR 1.6100(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, mono-trees and lattice towers.
16. “Transmission equipment” means the same as defined by the FCC in 47 CFR 1.6100(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.
17. “Wireless” means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum.
18. “Wireless facility” means any installation or facilities used to provide personal wireless services. The term includes, without limitation, freestanding facilities (such as monopoles), building-mounted facilities and facilities mounted on utility infrastructure, which includes without limitation facilities mounted on cables or wires between utility poles. The term does not include facilities solely intended for indoor use, such as a Wi-Fi router in a home or business.
C. Applicability. This section applies to all collocations or modifications to an existing wireless tower or base station submitted with a written request for approval pursuant to Section 6409(a). However, the applicant may voluntarily elect to seek either an administrative use permit or conditional use permit, as may be appropriate, under Section 17.62.300.
D. Approval Required.
1. Section 6409(a) Approval. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted with a written request for approval under Section 6409(a) shall require a “Section 6409(a) approval” subject to the zoning administrator’s approval, conditional approval or denial pursuant to the standards and procedures contained in subsection F of this section (Decisions).
2. Other Regulatory Approvals Required. No collocation or modification approved under any Section 6409(a) approval may occur unless the applicant also obtains all other permits or regulatory approvals from other city departments and state or federal agencies. Furthermore, any Section 6409(a) approval granted under this section shall remain subject to any and all lawful conditions and/or requirements associated with such other permits or regulatory approvals from other city departments and state or federal agencies.
E. Permit Applications.
1. Application Requirement. The city shall not approve any wireless facility subject to this section except upon a duly filed application consistent with the provisions in this subsection E and any other written rules the city or the city manager may establish from time to time in any publicly stated format.
2. Application Content. The city council authorizes the city manager to develop and publish permit application forms, checklists, informational handouts and other related materials that the city manager finds necessary, appropriate or useful for processing requests for Section 6409(a) approvals. Without further authorization from the city council, the city manager may from time to time update and alter any such permit application forms, checklists, informational handouts and other related materials as the city manager deems necessary, appropriate or useful to respond to regulatory, technological or other changes. The materials required under this section are minimum requirements for any application.
a. Planning Application Form and Applicable Fee. The applicant must complete, execute and submit the planning application form and tender to the city the applicable fee in the amount established by city council resolution pursuant to Chapter 17.06 (Fees). In the event the city does not require a specific fee for Section 6409(a) approvals, the highest fee applicable to an administrative use permit will be required. In addition, consultant fees to help facilitate expedited technical review may be charged, along with a consultant management fee, as well as public works review fees.
b. Title Report and Owner’s Authorization. The applicant must provide a title report prepared within the six months prior to the application filing date in order for the city to verify the property owner’s identity. If the applicant does not own the subject property, the application must include a written authorization signed by the property owner that empowers the applicant to file the application and perform all facility construction, installation, operation and maintenance to the extent described in the application.
c. CPCN. To the extent that the applicant claims any regulatory authorization or other right to use the public rights-of-way, such as a certificate of public convenience and necessity, the applicant must provide a true and correct copy of the certificate, license, notice to proceed or other regulatory authorization that supports the applicant’s claim.
d. Prior Regulatory Approvals. Evidence that the applicant holds all current licenses and registrations from the FCC and any other applicable regulatory bodies where such license(s) or registration(s) are necessary to provide wireless services utilizing the proposed wireless facility. For any prior local regulatory approval(s) associated with the wireless facility, the applicant must submit copies of all such approvals, including any corresponding approved project plans and conditions of approval. Alternatively, the applicant may submit a written justification that sets forth reasons why prior regulatory approvals were not required for the wireless facility at the time it was constructed or modified.
e. Project Plans. A fully dimensioned, and full color, site plan and elevation drawings prepared and sealed by a California-licensed engineer showing any existing wireless facilities with all existing transmission equipment and other improvements, the proposed facility with all proposed transmission equipment and other improvements and the legal boundaries of the leased or owned area surrounding the proposed facility and any associated access or utility easements. The plans must specifically depict and call out the original overall height of the structure and, if the structure was constructed prior to February 22, 2012, the overall height that existed on February 22, 2012. The plans must contain all other elements and details required for site plans submitted with a permit application pursuant to a conditional use permit.
f. Site Photos and Photo Simulations. Photographs and photo simulations that show the proposed facility in context of the site from reasonable line-of-sight locations from public streets or other adjacent viewpoints, together with a map that shows the photo location of each view angle.
g. RF Compliance Demonstration. 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 collocated facilities, 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 radiated 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.
h. Acoustic Analysis. A written report that analyzes acoustic levels for the proposed facility and all associated equipment including without limitation all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators in order to demonstrate compliance with Chapter 17.50 (Noise). The acoustic analysis must be prepared and certified by an engineer and include an analysis of the manufacturers’ specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. In lieu of a written report, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits.
i. Section 6409(a) Justification Analysis. A written statement that explains in plain factual detail whether and why Section 6409(a) and the related FCC regulations at 47 CFR 1.6100 et seq. require approval for the specific project. A complete written narrative analysis will state the applicable standard and all the facts that allow the city to conclude the standard has been met—bare conclusions not factually supported do not constitute a complete written analysis. As part of this written statement the applicant must also include (i) whether and why the support structure qualifies as an existing tower or existing base station; and (ii) whether and why the proposed collocation or modification does not cause a substantial change in height, width, excavation, equipment cabinets, concealment or permit compliance.
3. Procedures for a Duly Filed Application. The city shall not review any application unless duly filed in accordance with the provisions in this subsection (E)(3).
a. Voluntary Pre-Submittal Conference. Before application submittal, the city encourages applicants to schedule and attend a pre-application meeting with city staff for all proposed modifications submitted for approval pursuant to Section 6409(a). Applicants must also pay the applicable fee for a pre-submittal conference. The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification, including whether the project qualifies for Section 6409(a); any latent issues in connection with the existing tower or base station; potential concealment issues (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 about whether such applications or other materials may be incomplete or unacceptable. The zoning administrator may, in the zoning administrator’s discretion, grant a written exemption to the submittal appointment under subsection (E)(3)(b) of this section and/or for a specific requirement for a complete application to any applicant who (i) schedules, attends and fully participates in any pre-submittal conference and (ii) shows to the zoning administrator’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.
b. Submittal Appointment. All applications must be filed with the city at a prescheduled appointment. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. Any application received without an appointment, whether delivered in person or through any other means, will not be considered duly filed unless the applicant received a written exemption from the zoning administrator at a pre-submittal conference.
c. Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request to the zoning administrator. The zoning administrator shall endeavor to provide applicants with an appointment as soon as reasonably feasible and within five business days after a written request is received.
4. Applications Deemed Withdrawn. To promote efficient review and timely decisions, and in accordance with Section 17.16.030(D), an application will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the city within sixty calendar days after the city deems the application incomplete in a written notice to the applicant. The zoning administrator may, in the zoning administrator’s discretion, grant a written extension for up to an additional thirty calendar days when the applicant submits a written request prior to the sixtieth 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.
5. Departmental Rules. The city council authorizes the city manager to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the city manager 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.
F. Decisions.
1. Decision Notices. Within five working days after the approving authority approves, conditionally approves or denies an application submitted for approval pursuant to Section 6409(a) or before the FCC time frame for review expires (whichever occurs first), the approving authority shall send a written notice to the applicant and all other parties entitled to receive notice. In the event that the approving authority determines that an application submitted for approval pursuant to Section 6409(a) does not qualify for approval, the approving authority will send written notice to the applicant that includes the reasons to support the approving authority’s decision and states that the application will be automatically denied without prejudice on the sixtieth day after the date the application was filed unless the applicant withdraws the application.
2. Required Findings for Approval. The approving authority may approve or conditionally approve an application submitted for approval pursuant to Section 6409(a) when it finds that the proposed project:
a. Involves collocation, removal or replacement of transmission equipment on an existing wireless tower or base station; and
b. Does not substantially change the physical dimensions of the existing wireless tower or base station.
3. Criteria for Denial. Notwithstanding any other provisions in this section, and consistent with all applicable federal laws and regulations, the approving authority may deny an application submitted for approval pursuant to Section 6409(a) when it finds that the proposed project:
a. Does not satisfy the criteria for approval;
b. Violates any legally enforceable standard or permit condition reasonably related to public health and safety then in effect; or
c. Involves the replacement of the entire support structure.
4. Conditional Approvals. Subject to any applicable limitations in federal or state law, nothing in this section is intended to limit the zoning administrator’s authority to conditionally approve an application for a Section 6409(a) approval to protect and promote the public health and safety.
5. Appeals. Any applicant may appeal the zoning administrator’s decision to deny without prejudice a Section 6409(a) application. The appeal must be filed within ten days from the zoning administrator’s decision. The appeal must state in plain terms the grounds for reversal and the facts that support those grounds. The city manager shall serve as the appellate authority for all appeals of all actions of the zoning administrator taken pursuant to this section. The city manager shall limit its review to whether the project should be approved or denied in accordance with the provisions in subsections (F)(2) and (3) of this section. The decision of the city manager shall be final and not subject to any further administrative appeals.
G. Standard Conditions of Approval. In addition to all other conditions adopted by the approving authority, all conditional use permits and administrative use permits, whether approved by the approving authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this subsection G. The approving authority shall have discretion to modify the conditions in this subsection G on a case-by-case basis as the approval authority deems necessary or appropriate to enable the proper operation of the wireless facility and promote public health and safety, and to advance the purposes in this section.
1. Permit Term. The city’s grant or grant by operation of law of a Section 6409(a) approval constitutes a federally mandated modification to the underlying permit or other prior regulatory authorization for the subject tower or base station. The city’s grant or grant by operation of law of a Section 6409(a) approval will not extend the permit term, if any, for any administrative use permit, conditional use permit or other underlying prior regulatory authorization. Accordingly, the term for a Section 6409(a) approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station.
2. Accelerated Permit Terms Due to Invalidation. In the event that any court of competent jurisdiction invalidates any portion of Section 6409(a) or any FCC rule that interprets Section 6409(a) such that federal law would not mandate approval for any Section 6409(a) approval(s), such approval(s) shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved Section 6409(a) approvals or the zoning administrator grants an extension upon written request from the permittee that shows good cause for the extension, which includes without limitation extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the zoning administrator may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated Section 6409(a) approval when it has submitted an application for either an administrative use permit or conditional use permit for those improvements before the one-year period ends.
3. No Waiver of Standing. The city’s grant or grant by operation of law of a Section 6409(a) approval does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409(a), any FCC rules that interpret Section 6409(a) or any Section 6409(a) approval.
4. Approved Plans and Photo Simulations. Before the permittee submits any applications to the building division, the permittee must incorporate this Section 6409(a) approval, all conditions associated with this Section 6409(a) approval and the approved photo simulations into the project plans (the “approved plans”). The permittee must construct, install and operate the 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 facility, must be submitted in a written request subject to the zoning administrator’s prior review and approval, who may revoke the Section 6409(a) approval if the zoning administrator finds that the requested alteration, modification or other change may cause a substantial change as that term is defined by the FCC in 47 CFR 1.6100(b)(7), as may be amended.
5. Build-Out Period. This Section 6409(a) approval will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved 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 facility or its use. The zoning administrator may grant one written extension to a date certain not exceeding one year from the permit issuance date when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least thirty days prior to the automatic expiration date in this condition.
6. 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 Section 6409(a) approval. 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 forty-eight hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
7. 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 facility or any use or activities in connection with the use authorized in this Section 6409(a) approval. 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.
8. 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 construction, installation, operation, modification, maintenance, repair, removal and/or other activities at the site. The permittee may only perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines between seven a.m. and six p.m. weekdays or on Saturday from eight a.m. to five p.m. No work described above shall be done on Sunday or any city, state or federal holiday. 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 zoning administrator or the zoning administrator’s designee may issue a stop work order for any work that violates this condition.
9. Noise Complaints. The permittee shall conduct all activities on the site in compliance with the ambient noise standards in Chapter 17.50 (Noise) applicable to the location in which the wireless facility is located. In the event that any person files a noise complaint and the city verifies that such complaint is valid, the permittee must remedy the violation within ten days after notice from the city, which may include a demonstration that the permittee has amended its operational guidelines in situations where the violation arises from the permittee’s personnel rather than the permittee’s equipment.
10. Inspections—Emergencies. The permittee expressly acknowledges and agrees that the city or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the city or its 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 threaten actual, imminent harm to property or persons. The permittee will be permitted to supervise the city or its designee while such inspection or emergency access occurs.
11. Contact Information. The permittee shall furnish the development services department with accurate and up-to-date contact information for a person responsible for the 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.
12. Indemnification. The permittee and, if applicable, the property owner upon which the facility is installed shall defend, indemnify and hold harmless the city, its agents, officers, officials, employees and volunteers from any and all (a) 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 Section 6409(a) approval, and (b) 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 Section 6409(a) approval or the 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 the 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 Section 6409(a) approval, and that such indemnification obligations will survive the expiration or revocation of this Section 6409(a) approval.
13. Performance Bond. Before the development services department issues any construction permit in connection with the facility, the permittee shall post a performance bond from a surety and in a form acceptable to the city manager in an amount equal to or greater than 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 facility. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code Section 65964(a), the city manager shall take into consideration information provided by the permittee regarding the cost to remove the facility.
14. Revocation. The original approving authority may recall this Section 6409(a) approval for review at any time due to complaints about noncompliance with the applicable provisions in the San Pablo Municipal Code or any approval conditions. At a duly noticed public hearing and in accordance with all applicable laws, the zoning administrator may revoke this Section 6409(a) approval or amend these conditions as the zoning administrator deems necessary or appropriate to correct any such noncompliance.
15. Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the 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.
H. Compliance Obligations. An applicant or permittee will not be relieved of its obligation to comply with every applicable provision in the San Pablo Municipal Code, this section, any permit, any permit condition or any applicable law or regulation by reason of any failure by the city to timely notice, prompt or enforce compliance by the applicant or permittee. (Ord. 2021-001 § 2, 2021; Ord. 2020-002 § 26, 2020; Ord. 2017-003 § 5, 2017: Ord. 2015-002 § 3 (Exh. 1)(part), 2015)
17.62.300 Wireless facilities—New and substantially changed facilities.
A. Legislative Intent. The city of San Pablo intends this section to establish reasonable and uniform 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 section 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, its neighborhoods and community. This section 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 or regulation 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 facilities comply with the Federal Communications Commission’s regulations concerning such emissions; (5) prohibit any collocation or modification that the city may not deny under federal or California State law; or (6) otherwise authorize the city to preempt any applicable federal or California State law.
B. Definitions. The abbreviations, phrases, terms and words in this section will have the meanings assigned to them in this subsection or, as may be appropriate, in Section 17.68.020 (Universal 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 section conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.
1. “Approving 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 approving authority for a project which requires an administrative use permit or temporary use permit refers to the zoning administrator. The approving authority for a project which requires a conditional use permit refers to the planning commission.
2. “City manager” means the city manager of the city of San Pablo or his or her designee.
3. “Collocation” means the same as defined by the FCC in 47 CFR 1.6100(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.
4. “CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or its duly appointed successor agency.
5. “Eligible support structure” means the same as defined by the FCC in 47 CFR 1.6100(b)(4), as may be amended, which defines that term as any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the state or local government under this section.
6. “FAA” means the Federal Aviation Administration or its duly appointed successor agency.
7. “FCC” means the Federal Communications Commission or its duly appointed successor agency.
8. “OTARD” means any over-the-air reception device subject to 47 CFR 1.4000 et seq., as may be amended, and which includes satellite television dishes not greater than one meter in diameter.
9. “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.
10. “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.
11. “RF” means radio frequency or electromagnetic waves between thirty kHz and three hundred GHz in the electromagnetic spectrum range.
12. “Section 6409(a)” means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156, codified as 47 U.S.C. Section 1455(a), as may be amended.
13. “Small wireless facility” means the same as defined by the FCC in 47 CFR 1.6002(l), as may be amended or superseded.
14. “Stealth” means concealment techniques that completely screen all transmission equipment from public view and architecturally integrate the facility into the built environment such that, given the particular context, the average, untrained observer would not recognize the structure as a wireless facility. Stealth concealment techniques include, without limitation: (a) transmission equipment placed completely within existing or replacement architectural features such that the installation causes no visible change in the underlying support structure; and (b) new architectural features that mimic or blend with the underlying or surrounding structures in style, proportion and construction quality.
15. “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 the site on which they are located.
16. “Tower” means the same as defined by the FCC in 47 CFR 1.6100(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, mono-trees and lattice towers.
17. “Transmission equipment” means the same as defined by the FCC in 47 CFR 1.6100(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.
18. “Wireless” means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum.
19. “Wireless facility” means any installation or facilities used to provide personal wireless services and/or wireless telecommunications services. The term includes, without limitation, freestanding facilities (such as monopoles, faux trees, etc.), building-mounted facilities (such as on the roof or facade) and facilities mounted on utility infrastructure, which includes without limitation facilities mounted on cables or wires between utility poles. The term does not include facilities solely intended for indoor use, such as a Wi-Fi router in a home or business.
C. Applicability.
1. Applicable Facilities. This section applies to all applications and requests for approval to construct, install, modify, collocate, relocate or otherwise deploy wireless facilities in the city, unless exempted pursuant to subsection (C)(2) of this section or governed under Section 17.62.200 pursuant to subsection (C)(3) of this section.
2. Exempt Facilities. Notwithstanding subsection (C)(1) of this section, the provisions in this section will not be applicable to: (a) facilities owned and operated by the city for public purposes; (b) facilities installed on city property in the public right-of-way pursuant to an approved master license agreement with the city; (c) amateur radio facilities; (d) OTARD antennas; (e) 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); and (f) 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.
3. Requests for Approval Pursuant to Section 6409(a). All requests for approval submitted pursuant to Section 6409(a) will be first evaluated pursuant to the provisions in Section 17.62.200. Applications that qualify for mandatory approval under Section 6409(a) will not be subject to the requirements of this section.
D. Permits Required.
1. Administrative Use Permit. An administrative use permit, subject to the zoning administrator’s prior review and approval in accordance with Section 17.18.080 (Administrative use permit), is required for facilities in preferred locations as defined in subsection (G)(1) of this section that do not require an exception pursuant to subsection (F)(4) of this section. All applications for small wireless facilities subject to this section shall require an administrative use permit.
2. Conditional Use Permit. A conditional use permit, subject to the planning commission’s prior review and approval in accordance with Section 17.20.040 (Conditional use permit), is required for:
a. All facilities not in preferred locations as defined in subsection (G)(1) of this section;
b. All facilities on private property within two hundred fifty feet from a single-family or multifamily residence;
c. All facilities in or within two hundred fifty feet from a district or structure listed or eligible to be listed on any federal, state or local historic register;
d. All facilities in open space districts (including parks), hillside areas or priority development areas;
e. All unconcealed facilities in any zone or district; and
f. All facilities that require an exception pursuant to subsection (F)(4) of this section, unless the application is for a small wireless facility.
3. Temporary Use Permit. A temporary use permit, subject to the zoning administrator’s prior review and approval, is required for any temporary wireless facility unless deployed in connection with an emergency pursuant to subsection (K)(2) of this section.
4. Referral. The zoning administrator may refer any application for an administrative use permit to the planning commission in accordance with Section 17.16.070(C) (Referral to the Planning Commission). Notwithstanding the foregoing, the zoning administrator shall not refer to the planning commission any application for a small wireless facility.
5. Other Permits and Regulatory Approvals. In addition to any conditional use permit, administrative use permit or other permit required under this section, the applicant must obtain all other required prior permits and other regulatory approvals from other city departments, and state and federal agencies. Any conditional use permit, administrative use permit or other permit granted under this section will be subject to the conditions and/or other requirements in any other required prior permits or other regulatory approvals from other city departments, and state and federal agencies.
E. Permit Applications.
1. Application Requirement. The city shall not approve any wireless facility subject to this section except upon a duly filed application consistent with this subsection E and any other written rules the city manager may publish in any publicly stated format.
2. Application Content. The city council authorizes the city manager to develop and publish permit application forms, checklists, informational handouts and other related materials that the city manager finds necessary, appropriate or useful for processing applications under this section. Without further authorization from the city council, the city manager may from time to time update and alter the permit application forms, checklists, informational handouts and other related materials as the city manager deems necessary, appropriate or useful to respond to regulatory, technological or other changes. The materials required under this section are minimum requirements for any application.
a. Planning Application Form and Applicable Fee. The applicant must complete, execute and submit the planning application form and tender to the city the applicable fee in the amount established by city council resolution pursuant to Chapter 17.06 (Fees).
b. Title Report and Owner’s Authorization. For an application on private property, the applicant must provide a title report prepared within the six months prior to the application filing date in order for the city to verify the property owner’s identity. If the applicant does not own the subject property, the application must include a written authorization signed by the property owner that empowers the applicant to file the application and perform all facility construction, installation, operation and maintenance to the extent described in the application.
c. Regulatory Authorizations. To the extent that the applicant claims any regulatory authorization or other right to use the public rights-of-way, such as a certificate of public convenience and necessity, the applicant must provide a true and correct copy of the certificate, license, notice to proceed or other regulatory authorization that supports the applicant’s claim.
d. Project Plans. A fully dimensioned, and full color, site plan and elevation drawings prepared and sealed by a California-licensed engineer showing any existing wireless facilities with all existing transmission equipment and other improvements, the proposed facility with all proposed transmission equipment and other improvements and the legal boundaries of the leased or owned area surrounding the proposed facility and any associated access or utility easements. The plans must contain all other elements and details required for site plans submitted with an administrative use, temporary use or conditional use permit application, as applicable.
e. Site Photos and Photo Simulations. Photographs and photo simulations that show the proposed facility in context of the site from reasonable line-of-sight locations from public streets or other adjacent viewpoints, together with a map that shows the photo location of each view angle.
f. RF Compliance Demonstration. 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 collocated facilities, 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 radiated 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.
g. Acoustic Analysis. A written report that analyzes acoustic levels for the proposed facility and all associated equipment including without limitation all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators in order to demonstrate compliance with Chapter 17.50 (Noise). The acoustic analysis must be prepared and certified by an engineer and include an analysis of the manufacturers’ specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. In lieu of a written report, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits.
h. Project Purpose Statement. A written statement that includes: (i) a description of the technical objectives to be achieved; (ii) an annotated topographical map that identifies the targeted service area to be benefitted; (iii) the estimated number of potentially affected users in the targeted service area; and (iv) 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.
i. Alternatives Analysis. The applicant must list all existing structures considered as alternatives to the proposed location, together with a general description of the site design considered at each location. The applicant must also provide a written explanation for why the alternatives considered, such as collocation, were unacceptable or infeasible, unavailable or not as consistent with the development standards in this section as the proposed location and design. This explanation must include a meaningful comparative analysis and such technical information and other factual justification as are necessary to document the reasons why each alternative is unacceptable, infeasible, unavailable or not as consistent with the development standards in this section as the proposed location. If an existing facility is listed among the alternatives, the applicant must specifically address why the collocation or modification of such wireless facility is not a viable option. If the proposed location is in the public right-of-way, the applicant may perform the alternatives sites analysis on other locations that it considered in the public right-of-way.
3. Procedures for a Duly Filed Application. The city shall not review any application unless duly filed in accordance with the provisions in this subsection (E)(3).
a. Voluntary Pre-Submittal Conference. Before application submittal, the city encourages, but does not require, that applicants schedule and attend a pre-submittal conference with city staff for all proposed facilities. Applicants must also pay the applicable fee for a pre-submittal conference. The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification and permit requirements, concealment opportunities and/or concerns, potential alternative sites and/or designs, requirements for a complete application, scheduling matters and coordination with other city departments responsible for application review. 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 about whether such applications or other materials may be incomplete or unacceptable. The zoning administrator may, in the zoning administrator’s discretion, grant a written exemption to the submittal appointment under subsection (E)(3)(b) of this section and/or for a specific requirement for a complete application to any applicant who (i) schedules, attends and fully participates in any pre-submittal conference and (ii) shows to the zoning administrator’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.
b. Submittal Appointment. All applications must be filed with the city at a pre-scheduled appointment. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. Any application received without an appointment, whether delivered in person or through any other means, will not be considered duly filed unless the applicant received a written exemption from the zoning administrator at a pre-submittal conference.
c. Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request to the zoning administrator. The zoning administrator shall endeavor to provide applicants with an appointment as soon as reasonably feasible and within five business days after a written request is received.
d. Applications Deemed Withdrawn. To promote efficient review and timely decisions, and in accordance with Section 17.16.030(D), an application will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the city within sixty calendar days after the city deems the application incomplete in a written notice to the applicant. The zoning administrator may, in the zoning administrator’s discretion, grant a written extension for up to an additional thirty calendar days when the applicant submits a written request prior to the sixtieth 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.
4. Departmental Rules. The city council authorizes the city manager to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the city manager 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.
F. Decisions.
1. Notice.
a. General Notice Required for the Application. Public notice as provided in Section 17.16.050 (Public hearing and public notice) will be required for any conditional use permit. The approving authority shall not act on any application for a wireless facility unless the public notice required by law has occurred.
b. Deemed-Approval Notice Procedures. Not more than thirty days before the applicable FCC time frame for review expires, and in addition to the public notice required in Section 17.16.050 (Public hearing and public notice) if applicable, an applicant for a conditional use permit or administrative 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 thirty days. The posted notice must be compliant with the notice content requirements in Section 17.16.050(B). The public notice required under this subsection (F)(1)(b) will be deemed given when the applicant delivers written notice with a photograph to the zoning administrator that shows the appropriate notice has been posted at the project site.
c. Decision Notices. Within five working days after the approving authority approves, conditionally approves or denies an application for a wireless facility or before the FCC time frame for review expires (whichever occurs first), the approving authority shall send a written notice to the applicant and all other parties entitled to receive notice. For any denial notice, the approving authority shall include the reasons for the denial either in the notice or as a separate written document.
2. Required Findings for Approval. The approving authority may approve or conditionally approve a duly filed application for a conditional use permit or administrative use permit only when the approving authority finds:
a. The proposed wireless facility complies with all the criteria for a conditional use permit or administrative use permit in accordance with Section 17.18.080(D) or 17.20.040(B), as applicable;
b. The proposed wireless facility complies with all applicable development standards described in subsection H of this section;
c. The applicant has demonstrated that its proposed facility will be in compliance with all applicable FCC rules and regulations for human exposure to RF emissions;
d. The applicant has demonstrated a good-faith effort to identify and evaluate more preferred locations, collocations and potentially less intrusive designs;
e. The applicant has provided the approving authority with a meaningful comparative analysis that shows all less intrusive or more preferred alternative locations and designs identified in the administrative record are either technically infeasible or not potentially available.
3. Conditional Approvals. The approving authority may impose any reasonable conditions on any conditional use permit or administrative use permit, related and proportionate to the subject matter in the application, as the approving authority deems necessary or appropriate to promote and ensure conformance with the general plan, any applicable specific plan and the provisions in this section.
4. Limited Exception for Personal Wireless Service Facilities. The approving authority shall not grant any limited exception pursuant to this subsection (F)(4) unless the approving authority finds all the following:
a. The applicant has provided the approving authority with a reasonable and clearly defined technical service objective to be achieved by the proposed facility;
b. The applicant has provided the approving authority with a written statement that contains a detailed and fact-specific explanation as to why the proposed facility cannot be deployed in compliance with the applicable provisions in this section, the San Pablo Municipal Code, the general plan and/or any specific plan;
c. The applicant has provided the approving 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 facility; and
d. The applicant has demonstrated 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 facility, which includes without limitation a meaningful comparative analysis into multiple smaller or less intrusive facilities dispersed throughout the intended service area.
5. Appeals. Any interested person or entity may appeal a decision by the approving authority in accordance with the provisions in Section 17.16.080 (Appeals); provided, however, that appeals from an approval shall not be permitted when based solely on the environmental effects from RF emissions that are compliant with applicable FCC regulations and guidelines. Within thirty days after an appeal is filed, the appeal authority shall hold a de novo public hearing to consider and act on the application in accordance with the applicable provisions in this section, the San Pablo Municipal Code and the general plan. Notwithstanding the foregoing and Section 17.16.080 (Appeals), due to expedited federal time frames for approval applicable to small wireless facilities, a decision by the zoning administrator regarding an application for a small wireless facility shall be final and not subject to any appeal.
G. Site Location Guidelines.
1. Preferred Locations. All applicants must, to the extent feasible, propose new facilities in locations according to the following preferences, ordered from most preferred to least preferred. Facilities proposed to be sited in the following locations may be eligible for an administrative use permit:
a. City-owned properties;
b. Parcels within industrial zones;
c. Parcels within commercial sites;
d. Small wireless facilities in the public right-of-way.
2. Preferred Support Structures. In addition to the preferred locations described in subsection (G)(1) of this section, the city also expresses its preference for installations on certain support structures. In any zone, whether preferred or not preferred, the city will consider whether any more-preferred support structure is available.
a. Collocations with existing building-mounted or water-tank-mounted wireless facilities;
b. Collocations with existing wireless facilities on electric transmission towers;
c. Collocations with existing freestanding wireless facilities;
d. New installations on existing buildings, water tanks, telephone or utility poles, signage or sign standards, traffic signals, light standards, and roadway overpasses;
e. New installations on existing electric transmission towers;
f. New freestanding wireless towers.
H. Design Standards.
1. Generally Applicable Development Standards. All new wireless facilities and all collocations or modifications to existing wireless facilities not subject to Section 6409(a) must conform to the generally applicable development standards in this subsection H.
a. 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.
b. Overall Height.
i. Freestanding Facilities. The overall height for freestanding wireless facilities may not exceed the applicable height limit for structures in the applicable zoning district.
ii. Building-Mounted Facilities. Building-mounted wireless facilities may not extend more than fifteen feet above the support structure in industrial districts and ten feet above the support structure in all other nonresidential districts. The overall height for building-mounted facilities in residential districts may not exceed the applicable height limit for structures in such districts.
iii. Right-of-Way Facilities. No antenna may extend more than six feet above the support structure plus any minimum separation between the antenna and other pole attachments as may be required by applicable health and safety regulations (e.g., CPUC General Order 95). As an illustration and not a limitation, the CPUC requires a six-foot separation zone between antennas and electric lines. Accordingly, if an antenna is proposed to be mounted at the top of a utility pole above electric lines, the height allowance in this subsection would allow the highest point of the antenna to be six feet above the CPUC-mandated six-foot separation zone (i.e., a total of twelve feet above the utility pole).
c. Setbacks. Wireless facilities may not encroach into any applicable setback for structures in the subject zoning district.
d. Noise. Wireless facilities and all accessory equipment and transmission equipment must comply with all noise regulations, which include without limitation Chapter 17.50 (Noise), and shall not exceed, either individually or cumulatively, the applicable ambient noise limit in the subject zoning district. The approving 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.
e. Landscaping. Wireless facilities must include landscape features when proposed in a landscaped area. The approving authority may require additional landscape features, and an ongoing landscape maintenance plan, to screen the facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the concealment required under this section.
f. Security Measures. Wireless facilities may incorporate reasonable and appropriate security measures, such as fences, walls and anti-climbing devices, to prevent unauthorized access, theft and vandalism. Security measures must be designed to enhance concealment to the maximum extent possible. The approving authority may require additional concealment elements as the approving authority finds necessary to blend the security measures and other improvements into the natural and/or built environment. The approving authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures.
g. Backup Power Sources. The approving 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 in the public rights-of-way. The approving authority shall not approve any diesel generators or other similarly noisy or noxious generators in or within one thousand feet from any residential dwelling; provided, however, the approving authority may approve sockets or other connections used for temporary backup generators within the one-thousand-foot setback.
h. Lights. Wireless facilities may not include exterior lights other than (i) as may be required under FAA, FCC or other applicable governmental regulations; and (ii) 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 avoid illumination impacts on other properties.
i. Signage—Advertisements. All wireless facilities must include signage that accurately identifies the equipment owner/operator, the owner’s/operator’s site name or identification number and a toll-free number to the owner’s/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.
j. Future Collocations. All wireless facilities must be designed and sited in a manner that contemplates future collocations and will facilitate additional equipment to be integrated into the proposed facility or associated structures with no or negligible visual changes to its outward appearance to the greatest extent feasible.
k. Utilities. All cables and connectors for telephone, primary electric and other similar utility services must be routed underground to the extent feasible in conduits large enough to accommodate future collocated facilities. The approving authority shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost.
l. 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 includes without limitation the California Building Standards Code, general plan and any specific plan, the city municipal code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.
2. Freestanding Facilities.
a. Tower-Mounted Equipment. All tower-mounted equipment must be mounted as close to the vertical support structure as possible to reduce its visual profile. Applicants must mount non-antenna, tower-mounted equipment (including, but not limited to, remote radio units/heads, surge suppressors and utility demarcation boxes) directly behind the antennas to the maximum extent feasible. All tower-mounted equipment, cables and hardware must be painted with flat colors subject to the approving authority’s prior approval.
b. Ground-Mounted Equipment and Shelters. All ground-mounted equipment must be concealed within an existing or new structure, opaque fences or other enclosures subject to the approving authority’s prior approval. The approving authority may require additional concealment elements as the approving authority finds necessary to blend the ground-mounted equipment and other improvements into the natural and/or built environment.
3. Building-Mounted Facilities.
a. Preferred Concealment Techniques. All applicants should, to the extent feasible, propose new nontower facilities that are completely concealed and architecturally integrated into the existing facade or rooftop features with no visible impacts from any publicly accessible areas at ground level (examples include, but are not limited to, antennas concealed behind, and not above, existing parapet walls or facades replaced with RF-transparent material and finished to mimic the replaced materials). Alternatively, when integration with existing building features is not feasible, the applicant should propose completely concealed new structures or appurtenances designed to mimic the support structure’s original architecture and proportions (examples include, but are not limited to, cupolas, steeples, chimneys and water tanks).
b. Facade-Mounted Equipment. All facade-mounted equipment must be concealed behind screen walls and mounted as flush to the facade as practicable. The approving authority may not approve “pop-out” screen boxes unless the design is architecturally consistent with the original building or support structure. Except in industrial zones, the approving authority may not approve any exposed facade-mounted antennas, including but not limited to exposed antennas painted to match the facade.
c. Rooftop-Mounted Equipment. All rooftop-mounted equipment must be screened from public view with concealment measures that match the underlying structure in proportion, quality, architectural style and finish and color. The approving authority may approve unscreened rooftop equipment only when it expressly finds that such equipment is effectively concealed due to its low height and/or setback from the roofline.
d. Associated Ground-Mounted Equipment. Outdoor ground-mounted equipment associated with building-mounted facilities must be avoided whenever feasible. In publicly visible or accessible locations, applicants must conceal outdoor ground-mounted equipment with opaque fences or landscape features that mimic the adjacent structure(s) such as dumpster corrals and other accessory structures.
4. Right-of-Way Facilities.
a. Concealment. All wireless facilities in the right-of-way must be concealed to the maximum extent feasible with design elements and techniques that mimic or blend with the underlying support structure, surrounding environment and adjacent uses. In addition, wireless facilities in the rights-of-way may not unreasonably subject the public use, for any purpose including expressive or aesthetic purposes, to inconvenience, discomfort, trouble, annoyance, hindrance, impediment or obstruction.
b. Support Structures. All wireless facilities in the public right-of-way must be installed on existing above-ground structures whenever possible and desirable. Existing above-ground structures may be replaced with hardened support structures so long as the replacement structure is substantially similar to the existing structure to be replaced. The approving authority shall not approve any new, nonreplacement support structures unless: (i) the applicant demonstrates that above-ground support structures near the project site either do not exist or are not available to the applicant; or (ii) the approving authority finds that a new, nonreplacement support structure would be more desirable and consistent with the objectives in this section than installations on existing structures near the project site.
c. Undergrounded Equipment. To conceal the non-antenna equipment, applicants for a proposed facility within any area in which the existing utilities are primarily located underground shall underground all non-antenna equipment other than any required electric meter or disconnect switch. In all other areas, applicants shall install all non-antenna equipment underground to the extent feasible or effectively required to maintain pedestrian access as may be required by the Americans with Disabilities Act or other applicable law. Additional expense to install and maintain an underground equipment enclosure does not exempt an applicant from this requirement, except where the applicant demonstrates by clear and convincing evidence that this requirement will effectively prohibit the provision of personal wireless services.
d. Pole-Mounted Equipment. All pole-mounted equipment must be installed as close to the pole as technically and legally feasible to minimize impacts to the visual profile. All required or permitted signage in the rights-of-way must face toward the street or be otherwise placed to minimize visibility from adjacent sidewalks and structures. All conduits, conduit attachments, cables, wires and other connectors must be concealed from public view to the extent feasible.
e. Ground-Mounted Equipment. To the extent that the equipment cannot be placed underground as required, applicants must install ground-mounted equipment in the location so that it does not obstruct pedestrian or vehicular traffic. The approving authority may require landscaping as a condition of approval to conceal ground-mounted equipment.
5. Administrative Design Guidelines. The zoning administrator may develop, and from time to time amend, administrative design guidelines and preapproved designs to clarify the aesthetic goals and standards in this section for city staff, applicants and the public. The design guidelines may provide more detailed standards to implement the general principles articulated in this subsection H and may include specific standards for particular wireless facilities or site locations but shall not unreasonably discriminate between functionally equivalent service providers. In the event that a conflict arises between the development standards specified in this section and the design guidelines adopted under this subsection (H)(5), the development standards specified in this section shall control.
I. Standard Conditions of Approval. In addition to all other conditions adopted by the approving authority, all conditional use permits and administrative use permits, whether approved by the approving authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this subsection I. The approving authority shall have discretion to modify the conditions in this subsection I on a case-by-case basis as the approval authority deems necessary or appropriate to enable the proper operation of the wireless facility and promote public health, safety and welfare.
1. 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 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 facility, must be submitted in a written request subject to the zoning administrator’s prior review and approval, who may refer the request to the original approving authority if the zoning administrator finds that the requested alteration, modification or other change implicates a significant or substantial land use concern.
2. Permit Duration. This permit will automatically expire ten 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 facility, which include 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.
3. Build-Out Period. This permit will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved facility, which include without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, the facility or its use. The zoning administrator may grant one written extension to a date certain not exceeding one year from the permit issuance date when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least thirty days prior to the automatic expiration date in this condition.
4. Concealment Elements. The permittee acknowledges that (a) the San Pablo Municipal Code requires all wireless facilities to incorporate concealment elements to the maximum extent feasible; (b) concealment elements may take many different forms; and (c) although the city may occasionally discuss specific concealment elements, it would be impractical and administratively difficult to enumerate or articulate each individual concealment element on a case-by-case basis. Accordingly, the permittee expressly acknowledges and agrees that each design element and/or feature, which includes without limitation any screening, painting, texturing, proportionality or similarity with other natural features or manmade structures in the vicinity or placement within existing structures, that directly or indirectly mitigates, diminishes, reduces, avoids, alleviates or otherwise lessens the facility’s visual impact or blends the facility into the natural or built environment is deemed to be a concealment element for all purposes, whether expressly stated as such in the administrative record or not.
5. 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 forty-eight hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
6. 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 facility or any use or activities in connection with the use authorized in this permit. 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.
7. 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 construction, installation, operation, modification, maintenance, repair, removal and/or other activities at the site. The permittee may only perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines between seven a.m. and six p.m. weekdays or on Saturday from eight a.m. to five p.m. No work described above shall be done on Sunday or any city, state or federal holiday. 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 zoning administrator or the zoning administrator’s designee may issue a stop work order for any work that violates this condition.
8. Noise Complaints. The permittee shall conduct all activities on the site in compliance with the ambient noise standards in Chapter 17.50 (Noise) applicable to the zone or district in which the facility is located. In the event that any person files a noise complaint and the city verifies that such complaint is valid, the permittee must remedy the violation within ten days after notice from the city, which may include a demonstration that the permittee has amended its operational guidelines in situations where the violation arises from the permittee’s personnel rather than the permittee’s equipment.
9. Inspections—Emergencies. The permittee expressly acknowledges and agrees that the city or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the city or its 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 or its designee while such inspection or emergency access occurs.
10. Contact Information. The permittee shall furnish the development services department with accurate and up-to-date contact information for a person responsible for the 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.
11. Indemnification. The permittee and, if applicable, the property owner upon which the facility is installed shall defend, indemnify and hold harmless the city, its agents, officers, officials, employees and volunteers from any and all (a) 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 (b) 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 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.
12. Performance Bond. Before the building division issues any construction permit in connection with the facility, the permittee shall post a performance bond from a surety and in a form acceptable to the city manager in an amount equal to or greater than 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 includes 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 facility. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code Section 65964(a), the city manager shall take into consideration information provided by the permittee regarding the cost to remove the facility.
13. Revocation. The original approving authority may recall this permit for review at any time due to complaints about noncompliance with the applicable provisions of the San Pablo Municipal Code or any approval conditions. At a duly noticed public hearing and in accordance with all applicable laws, the approving authority may revoke this permit or amend these conditions as the approving authority deems necessary or appropriate to correct any such noncompliance.
14. Record Retention. The permittee shall retain full and complete copies of all permits and other regulatory approvals issued in connection with the facility, which include without limitation all conditions of approval, approved plans, resolutions and other documentation associated with the permit or regulatory approval. In the event that the city cannot locate any such full and complete permits or other regulatory approvals in its official records, and the permittee fails to retain full and complete permits or other regulatory approvals in the permittee’s files, any ambiguities or uncertainties that would be resolved through an examination of the missing documents will be conclusively resolved against the permittee.
15. Undergrounded Utilities. In the event that other public utilities or cable television operators in the public right-of-way where the permittee’s wireless facility is located underground their facilities, the permittee for such wireless facility located in the public right-of-way must underground its equipment except the antennas and antenna supports. Such undergrounding shall occur at the permittee’s sole cost and expense except as reimbursed pursuant to law. Telecommunications providers must fund their portions of the conversions from above-ground to underground facilities either at the time of initial installation or as part of a Rule 20A conversion project for all city of San Pablo underground utility districts (UUDs) qualified under CPUC Rule 32A.1, which includes service routes one hundred feet from the point of service to individual property owners.
16. Electric Meter Removal. In the event that the commercial electric utility provider provides, adopts or amends rules that obviate the need for a separate electric meter and enclosure, the permittee for a wireless facility located in the public right-of-way that is serviced by such electric meter, on the permittee’s own initiative and at the permittee’s sole cost and expense, shall apply to the city for permission to remove the separate electric meter and enclosure. The permittee shall also restore the area affected by the electric meter to its original condition.
J. Amortization of Nonconforming Facilities. Any nonconforming facilities in existence at the time this section becomes effective must be brought into conformance with this section in accordance with the amortization schedule in this subsection J. As used in this subsection J, the “fair market value” will be the construction costs listed on the building permit application for the subject facility and the “minimum years” allowed will be measured from the date on which this section 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 city manager may grant a written extension to a date certain when the facility owner shows (1) a good faith effort to cure nonconformance and (2) 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 city manager may not grant any permanent exemption from this subsection J.
Nothing in this subsection J is intended to limit any permit term to less than ten years. In the event that the amortization required in this subsection J would reduce the permit term to less than ten years for any permit granted on or after September 29, 2006, then the minimum years allowed will be automatically extended by the difference between ten years and the number of years since the city granted such permit. Nothing in this subsection J 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 facility.
K. Temporary Facilities.
1. Temporary Facilities for Nonemergencies. The zoning administrator may approve or conditionally approve a temporary use permit for a temporary wireless facility only when the zoning administrator finds all the following:
a. The proposed temporary wireless facility will not exceed fifty feet in overall height above ground level, or such greater height as the applicant demonstrates is reasonably required for the temporary wireless facility;
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 substantial 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 site operator and contains a working telephone number to a live person who can exert power-down control over the antennas;
g. The proposed wireless temporary wireless facility will be removed within five days after the approving authority grants the temporary use permit, or such longer time as the approving authority finds reasonably related to the applicant’s need or purpose for the temporary wireless facility;
h. The applicant has not received any other temporary use permit for substantially the same location within the previous ninety days; and
i. The applicant has not sought approval for any permanent wireless facility in substantially the same location within the previous three hundred sixty-five days.
2. Temporary 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 (K)(2) must be removed within five days after the date the emergency is lifted (whichever occurs first). Any person or entity that places temporary wireless facilities pursuant to this subsection (K)(2) must send a written notice that identifies the site location and person responsible for its operation to the zoning administrator as soon as reasonably practicable.
L. Administrative Orders and Regulations. In addition to the requirements in this section, the zoning administrator may adopt such orders or regulations as the zoning administrator deems necessary or appropriate to protect and maintain public health, safety, welfare and convenience. All wireless facilities must conform to all applicable orders and regulations issued by the zoning administrator, unless the zoning administrator, in his or her discretion, grants a prior written waiver to deviate from, in whole or in part, any such order or regulation. The zoning administrator shall develop and publish guidelines to implement the waivers authorized by this section.
M. Compliance Obligations. An applicant or permittee will not be relieved of its obligation to comply with every applicable provision in the San Pablo Municipal Code, this section, any permit, any permit condition or any applicable law or regulation by reason of any failure by the city to timely notice, prompt or enforce compliance by the applicant or permittee. (Ord. 2021-001 § 3, 2021; Ord. 2017-003 § 6, 2017)